South Coast Holdings Limited v Alibhai t/a Diani Gallery (Civil Appeal E023 of 2022) [2026] KECA 502 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that landlords who lock out controlled tenants without a statutory notice lose rent claims and may pay heavy damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether any wrongdoing or liability on the part of the Appellant was lawfully pleaded and proved so as to justify the award of damages against the Appellant
- 2.Whether the learned Judge was wrong in failing to find that the Respondent was in breach of the written lease agreement and/or implied terms of the tenancy, and whether such breach entitled the Appellant to relief
- 3.Whether the learned Judge awarded the Respondent Kshs. 2,000,000 as general damages for breach of contract
- 4.Whether the learned Judge failed to appreciate that the Appellant suffered loss and damage as a result of the Respondent's breach of contract and the failure to pay rent and accrued service charge
- 5.Whether the learned Judge was wrong in failing to award the Appellant the sums claimed in the counterclaim, namely arrears of rent and service charge for the periods pleaded
Key legal issues
#Whether an actionable wrong was pleaded and proved to justify the award of damages
The pleadings disclosed a cause of action in unlawful eviction and trespass; the Appellant's admissions of locking the premises without court order and demanding rent for periods of non-occupation established the wrong
The Respondent pleaded that the Appellant barricaded, chained and padlocked the premises without notice or court order, disclosing unlawful eviction and trespass, recognized torts. The Appellant's own witness admitted under cross-examination that no court or tribunal order preceded the locking, and that rent was demanded for periods the Respondent was not in possession. The earlier definitive ruling that the tenancy was a controlled tenancy remained unchallenged and binding. Absent statutory notice under Section 4, the locking was unlawful.
Whether the Kshs. 2,000,000 award was general damages for breach of contract
The award was for unlawful eviction, a tort, not breach of contract; general damages are therefore recoverable and the ground fails
While it is trite that general damages are not awardable in breach-of-contract claims (Dharamshi vs Karsan, KTDC vs Sundowner Lodge), the trial judgment expressly grounded the award on a finding of unlawful and wrongful eviction, which is tortious. Appellate courts may interfere with quantum only where wrong principles were applied or the figure is inordinately high or low; no such error was shown.
Whether the Appellant was entitled to the counterclaim sums
No rent was payable for the period of unlawful dispossession, and the service-charge and VAT computations were admitted to be erroneous and unreliable, so the counterclaim sums were unproved
A controlled tenant who was constructively evicted is relieved of rent and service charge for the dispossession period. The Appellant's witness admitted double application of VAT, inaccurate figures, demands covering periods of non-occupation, and conceded the sums needed reconsideration. Evidence disclosing material errors, inconsistencies and unwarranted demands went to the root of the counterclaim and discredited the amounts claimed. Rent was properly awarded only for lawful occupation from January 2016 to April 2018.
The duty of a first appellate court
A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses
Relying on the classic statement in Selle vs Associated Motor Boat Company, the Court restated that it is not bound by the trial judge's findings of fact where the judge failed to take account of particular circumstances or probabilities, or where findings are inconsistent with the evidence generally.
Legal principles established
#- A controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act can only be terminated, or its terms altered to the tenant's detriment, by strict statutory notice under Section 4 of the Act; self-help remedies such as padlocking premises without a court or tribunal order are unlawful and amount to wrongful eviction
- A landlord is not entitled to rent for a period during which a tenant was unlawfully dispossessed of the premises
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a first appeal from the High Court (Article 164 of the Constitution); the appeal was heard as a first appeal requiring reconsideration of evidence
Relief refused
#Appellant's claim for Kshs. 1,869,928 and Kshs. 1,977,915 as rent and service charge arrears
The Respondent was unlawfully evicted and was not liable for rent for the period of dispossession, and the amounts claimed were admitted by the Appellant's own witness to be erroneous and unproved
Appellant's challenge to the award of Kshs. 2,000,000 general damages
The award was for unlawful eviction, not breach of contract, and no error in the award was demonstrated
Costs
The appeal was dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In sum, the appeal lacks merit and is hereby dismissed with costs to the Respondent. It is so ordered.
It is not also disputed that at no time was a statutory notice of termination or notice of distress ever issued in accordance with Section 4 of the Act.
the landlord cannot be entitled to rent for the duration the plaintifi was deprived of possession.
a careful examination of the Judgment discloses that the learned Judge did not award damages for breach of contract. Rather, the award was for damages for unlawful eviction expressly grounded on a finding that the Respondent had been unlawfully and wrongfully evicted.
The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles
The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of tenants for the purpose of afiording them the protection specified by its provisions
Issues in the judgment
#The appellate record was incomplete: the Court expressly noted that the record omitted the trial court proceedings, which it nonetheless proceeded on
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "South Coast Holdings Limited v Alibhai t/a Diani Gallery (Civil Appeal E023 of 2022) [2026] KECA 502 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/502/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.