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ELCPartially AllowedNairobi HCCC No. 1242 of 2002 (as amended)· [2016] KEELC 442 (KLR)

Registered Trustees of National Council of Churches of Kenya v Kaibi Limited & another [2016] KEELC 442 (KLR)

Environment and Land Court
14 October 2016
1,948 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court held that tenants who overstay after a lease expires and agree to a new rent must pay mesne profits even without a signed formal lease.

What this practically means

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Executive summary

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In this first-instance suit the Plaintiff, registered proprietor of L.R. No.209/4280 on which Tumaini House stands, sued for vacant possession, mesne profits and legal fees. It pleaded that by a lease dated 9th November 1993 it let office space to the 1st Defendant for six years from 1st March 1994; the lease expired on 29th February 2000 with rent arrears of about Kshs.1,229,500, and the Defendants nonetheless remained in occupation without paying rent. The Plaintiff claimed accrued mesne profits (amended to Kshs.3,942,098 as at 23rd August 2006), further mesne profits at Kshs.52,060 per month, and Kshs.245,000 in legal fees from Nairobi HCCC No. 1242 of 1997. The Defendants alleged acquiescence in the transfer of the tenancy to Gitobu Imanyara & Co. Advocates, prompting amendment to enjoin Hon. Gitobu Imanyara as 2nd Defendant. PW1, a property manager, testified that the 2nd Defendant paid the pre-expiry arrears, requested a fresh tenancy, agreed in writing to pay Kshs.52,060 monthly plus the legal fees, issued twelve post-dated cheques of Kshs.141,890 each, but the first cheque was dishonoured and the Defendants only vacated on 23rd August 2006. The Defendants adduced no evidence and filed no submissions. The court found the obligation to pay not defeated by the absence of a lease, held the Plaintiff's case proved on a balance of probabilities, and allowed the amended Plaint in terms of prayers (bb), (d), (e) and (f).

Key legal issues

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01

Liability for mesne profits after expiry of lease

Holding

The Defendants are liable for mesne profits from March 2000 at Kshs.52,060 per month having occupied the premises until August 2006 and agreed to the new rent

Reasoning

The lease expired on 29th February 2000. The 2nd Defendant settled the pre-expiry arrears, requested a fresh tenancy, consented in writing to pay Kshs.52,060 per month plus legal fees of Kshs.245,000 in twelve installments, but the first cheque was dishonoured and no payment followed. The Defendants continued in occupation until 23rd August 2006 without paying. The court held the obligation was not defeated by absence of a formal lease, and the Plaintiff proved its case on a balance of probabilities.

p. 4
02

Effect of failure by Defendants to adduce evidence

Holding

The Plaintiff's unrebuted evidence proved the claim on a balance of probabilities

Reasoning

The Defendants neither testified nor called any witness, and their counsel did not file submissions as directed. The Plaintiff's documentary evidence - the letters of offer, the distress instructions, the 2nd Defendant's letters of 16th February 2000, 26th June 2001 and the twelve post-dated cheques - stood unchallenged. On that evidence the court was satisfied the claim was proved on a balance of probabilities.

p. 4
03

Liability of the 2nd Defendant who took over the tenancy

Holding

The 2nd Defendant, having paid the arrears and undertaken to pay the new rent and legal fees, is liable for the mesne profits and the admitted legal fees

Reasoning

The Defence averred that the Plaintiff acquiesced in the transfer of the tenancy to Gitobu Imanyara & Co. Advocates, necessitating joinder of the 2nd Defendant. The 2nd Defendant paid the arrears of Kshs.1,229,548.30, requested a fresh tenancy, undertook in writing to pay the rent arrears, subsequent rent and legal fees in twelve installments by post-dated cheques, and occupied the premises until 23rd August 2006. He was accordingly liable.

p. 4

Legal principles established

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  • A party who continues to occupy premises after expiry of a lease, having agreed to pay a new rent, is liable for mesne profits even in the absence of a formal lease
  • Uncontroverted evidence stands unchallenged where the defendant adduces no evidence

Court orders

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  1. 1.Judgment for the Plaintiff in terms of prayer numbers (bb), (d), (e) and (f) of the amended Plaint dated 6th December, 2007
  2. 2.Mesne profits of Kshs.3,942,098 as at 23rd August 2006 awarded
  3. 3.Further mesne profits calculated at Kshs.52,060 per month from 1st September 2002 until possession was delivered up (vacated 23rd August 2006)
  4. 4.Admitted legal fees of Kshs.245,000 in Nairobi HCCC No. 1242 of 1997 awarded
  5. 5.Vacant possession of the suit premises (by then already delivered up on 23rd August 2006)

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
Jurisdiction invoked
Original civil jurisdiction over a claim for vacant possession and mesne profits (first-instance suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Registered Trustees of National Council of Churches of Kenya v Kaibi Limited & another [2016] KEELC 442 (KLR)", Case Analysis (2016). Nairobi HCCC No. 1242 of 2002 (as amended). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/442/eng@2016-10-14

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