Bernhard Rau v Samuel Kazungu Mramba & another [2017] KEELC 817 (KLR)
The bottom line
#A German national proved ownership of Mombasa apartments and won eviction, injunction, and repayment of rents collected without his authority.
What this practically means
#Executive summary
#Key legal issues
#Ownership and possessory rights of a non-citizen proprietor
The plaintiff, as registered proprietor for valuable consideration, is entitled to possession and enjoyment of the apartments free from the defendants' claims; judgment entered on prayers (a)-(f)
The court relied on Article 40(1) protecting property rights and Article 65 permitting non-citizens to hold property on leasehold tenure, reinforced by section 25(1) of the Land Registration Act on indefeasibility. The unchallenged evidence of PW1 and PW2, including the sale agreement dated 28 February 2013 and the agency termination notice of 4 February 2015, established ownership and unauthorised rent collection. No contrary evidence was adduced at formal proof.
Whether damages were payable in addition to accounts of rents collected
Damages refused because the accounting remedy under prayer (e) adequately compensates the plaintiff
The court held that once the defendants render financial statements and accounts of rent collected and pass the monies over with interest, awarding damages under prayer (g) would serve no purpose. The restitutionary/account remedy was treated as exhaustive of the plaintiff's loss flowing from the unauthorised collection of rents.
Legal principles established
#- Non-citizens may own property in Kenya on leasehold tenure under Article 65 of the Constitution, and a proprietor's rights under section 25(1) of the Land Registration Act are indefeasible except as provided in the Act
Court orders
#- 1.Judgment entered for the plaintiff in terms of prayers (a), (b), (c), (d), (e) and (f) of the plaint
- 2.Declaration that the plaintiff is the lawful owner and entitled to immediate possession of the apartments
- 3.Declaration that the defendants' collection of rent is null and void
- 4.Permanent injunction restraining the defendants from entering, occupying or dealing with the suit apartments
- 5.Mandatory order allowing the plaintiff unlimited access to the apartments
- 6.Mandatory order compelling the defendants to render accounts of rent collected from January 2015 and pass over the money with interest
- 7.Mandatory eviction order against the 1st defendant
- 8.Costs of the suit awarded to the plaintiff
- 9.Refusal of prayer (g) damages
- Jurisdiction invoked
- Environment and Land Court jurisdiction (Article 162(2)(b) of the Constitution); suit instituted by plaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernhard Rau v Samuel Kazungu Mramba & another [2017] KEELC 817 (KLR)", Case Analysis (2017). ELC Case No. 257 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/817/eng@2017-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.