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ELCPartially AllowedE&L No 966 of 2012 (Formerly HCC 194 of 2012)· [2013] KEELC 73 (KLR)

John Zedekiah Makwata v Isaac Ochebo Amke [2013] KEELC 73 (KLR)

Environment and Land Court of Kenya

26 September 2013

MSMunyao Sila

1,130 words in judgment

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The bottom line

A landlord who follows the lease's three-month notice clause can recover rent arrears plus notice-period rent, but only claims properly pleaded and proved.

What this practically means

Executive summary

The plaintiff, registered owner of land parcel Pioneer/Ngeria Block 1 (EATEC)/7683, sued the defendant over a written lease dated 27 May 2011 for a term of 3½ years from 1 July 2011 to 31 December 2014, with rent escalating from Kshs. 20,000/= to Kshs. 25,000/= per month. He alleged the defendant defaulted on rent from January 2012, prompting a termination notice in April 2012, yet the defendant refused to vacate and failed to pay water and electricity bills. The plaintiff sought a declaration that the lease was terminated, a declaration that the defendant was a trespasser, rent arrears, eviction, costs and interest. The defendant, though served, neither entered appearance nor filed a defence; the suit proceeded ex parte with the plaintiff as sole witness. The court accepted the uncontroverted evidence and held the lease validly terminated subject to the three months' notice clause. It limited the rent claim to the period of actual occupation (January to October 2012) plus three months' rent in lieu of notice, awarding Kshs. 220,000/= in arrears and Kshs. 75,000/= in lieu of notice. General damages were refused as unpleaded and unmerited since the plaintiff re-let the premises in January 2013; the eviction order was spent as the defendant had vacated; and the utility bills claim failed for want of proof as no bills were produced. The lease was declared terminated and the plaintiff received costs and interest.

Key legal issues

Termination of the lease for non-payment of rent

Holding

The lease dated 27 May 2011 was validly terminated, with the defendant obligated to vacate three months after notice

Reasoning

The written lease provided for termination on three months' notice. The defendant defaulted on rent from January 2012, the plaintiff issued a termination notice in April 2012, and the defendant ought to have vacated by August 2012 but remained in occupation until October 2012. The evidence was uncontroverted as the defendant did not enter appearance.

p. 2

Quantum of rent arrears recoverable

Holding

Rent arrears limited to the period of actual occupation plus the notice period, totalling Kshs. 295,000/= (Kshs. 220,000/= arrears plus Kshs. 75,000/= rent in lieu of notice)

Reasoning

The court held the plaintiff could only claim rent for the period the defendant remained in occupation (January to October 2012) plus a further three months' rent as the notice period. The arrears were computed at Kshs. 20,000/= per month for January to June 2012 and Kshs. 25,000/= per month thereafter, yielding Kshs. 220,000/=, with three months' rent in lieu of notice at Kshs. 75,000/=.

p. 2

Legal principles established

A tenant in default of termination notice is liable for rent for the period of occupation plus rent in lieu of the notice period
General damages cannot be awarded where not pleaded
Claims for utility bills must be proved by production of the bills

Court orders

1.A declaration that the lease agreement dated 27 May 2011 is terminated
2.The defendant to pay rent arrears from January 2012 to October 2012 totalling Kshs. 220,000/=
3.The defendant to pay three months rent in lieu of notice totalling Kshs. 75,000/=
4.The plaintiff awarded costs and interest of the suit

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court over a dispute relating to a lease of land parcel Pioneer/Ngeria Block 1 (EATEC)/7683

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "John Zedekiah Makwata v Isaac Ochebo Amke [2013] KEELC 73 (KLR)", Case Analysis (2013). E&L No 966 of 2012 (Formerly HCC 194 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/73/eng@2013-09-26

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