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Court of AppealDismissedCivil Appeal (Mombasa)· [2024] KECA 794 (KLR)

Samaki Industries (k) Limited v Kenya Ports Authority

Court of Appeal of Kenya
12 July 2024
3,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that staying on premises after your lease expires makes you a trespasser liable to pay compensation to the property owner.

What this practically means

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Executive summary

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This was a second appeal by Samaki Industries (K) Limited against the dismissal of its appeal by the Environment and Land Court (Yano, J) affirming the trial magistrate's judgment which dismissed Samaki's suit against the Kenya Ports Authority and allowed the Authority's counterclaim. The dispute concerned premises leased for 25 years from 1st April 1976, which expired on 31st March 2001. The trial court found that the lease had been determined and not renewed, that the appellant's continued occupation was illegal and amounted to trespass, and ordered vacant possession, payment of rent arrears of Kshs. 719,100 and monthly payments of Kshs. 84,600. The Court of Appeal, comprising Kairu, Murgor and Laibura JJA, confined itself to five points of law arising at trial and on first appeal. It held that the appellant, remaining in occupation after expiry of the lease without the respondent's consent, was a trespasser within the meaning of the Trespass Act, Cap. 294. Distinguishing rent, payable under a subsisting lease, from mesne profits, payable by a wrongful occupier, the Court held that the respondent's demand for post-expiry 'rent' ought properly to have been framed as mesne profits, but the erroneous labelling did not defeat the respondent's entitlement to compensation and possession. The grounds alleging that the learned Judge disregarded submissions and authorities were dismissed as inconsequential blanket assertions. New grounds not raised below were not entertained. The appeal was dismissed with costs to the respondent. The judgment binds subordinate courts and the ELC on the rent/mesne profits distinction and the consequences of holding over after lease expiry.

Key legal issues

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01

Whether the appellant was a trespasser on the suit premises

Holding

The appellant was a trespasser; the lease expired on 31st March 2001 and continued occupation without the respondent's consent constituted trespass under the Trespass Act, Cap. 294.

Reasoning

The lease under which the appellant entered the premises expired on 31st March 2001 and was not renewed. The respondent declined to renew it. The appellant neither obtained consent to remain nor vacated, instead locking up the premises. Applying the Trespass Act definition of trespass as remaining on land without the occupier's consent, the continued occupation was unlawful. The trial magistrate and the ELC Judge reached the same conclusion, and on a second appeal confined to points of law, there was nothing to fault in that finding.

p. 5
02

Whether the appellant was bound to pay arrears of rent notwithstanding the absence of a valid lease

Holding

Rent is payable only under a subsisting lease; the claim for the post-expiry period should properly have been framed as mesne profits, and the erroneous labelling as 'rent' did not negate the appellant's liability.

Reasoning

The court drew the distinction between rent, which becomes due and payable by a person in occupation under a lease or tenancy agreement, and mesne profits, which a person remaining in occupation after expiry of the lease without consent must pay. The respondent's demand for 'rent arrears' after expiry of the lease ought to have been demanded as mesne profits. The mislabelling did not extinguish the appellant's status as trespasser or the respondent's entitlement to compensation.

p. 5
03

Whether the respondent was entitled to mesne profits notwithstanding its refusal to renew the lease

Holding

Yes. Wrongful possession is the essence of a claim for mesne profits; the respondent was entitled to compensation for the period the appellant held over after the lease expired.

Reasoning

Adopting the definition in Purificacao Fernandes v Hugo Vincente de Perpetuo Socorro Andhrade, mesne profits are compensation recoverable from a person in wrongful possession of immovable property, awarded in place of rent where the tenant remains in possession after the tenancy has run out. The respondent's refusal to renew the lease did not defeat its right to recover possession together with mesne profits for the holding-over period.

p. 6
04

Whether the learned Judge disregarded the appellant's submissions and authorities, and failed to consider relevant legal provisions

Holding

These grounds were inconsequential; neither the record nor the submissions identified the submissions, authorities or legal provisions allegedly disregarded.

Reasoning

The court characterised these grounds as blanket statements raised when counsel runs short of issues. Neither the record of appeal nor the appellant's submissions traced the submissions made and authorities cited that were allegedly disregarded, or the legal provisions allegedly ignored. The appeal therefore failed on those grounds as well.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal confines itself to matters of law only, unless it is shown that the courts below considered matters they should not have considered, failed to consider matters they should have considered, or the decision is perverse.
  • A party who remains in occupation of leased premises after expiry of the lease without the proprietor's consent is a trespasser and is liable to pay mesne profits, not rent.
  • New grounds of appeal not pleaded, raised or considered at trial or on first appeal will not be entertained on second appeal.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
On appeal from
Environment and Land Court at Mombasa
Mombasa ELCA Case No. 33 of 2020
Jurisdiction invoked
Second appeal to the Court of Appeal, confined to matters of law (Court of Appeal Rules; appellate jurisdiction over the ELC decision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samaki Industries (k) Limited v Kenya Ports Authority", Case Analysis (2024). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/794/eng@2024-07-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.