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ELCPartially AllowedNot stated in the excerpt· [2017] KEELC 905 (KLR)

John Kagechu Muiruri t/a Muiruri Auto Parts & 5 others v Kihumo Property Developers (K) Ltd [2017] KEELC 905 (KLR)

Environment and Land Court
29 November 2017
3,832 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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Kenya's Environment and Land Court ruled that tenants whose leases expired have no right to stay, even if they hoped for renewal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (B M Eboso, J) determined two competing notices of motion arising from a dispute over LR No. 209/229/1 Race Course Road, Nairobi. The plaintiffs, long-standing tenants whose leases from the defendant expired in 2016, sought an interlocutory injunction restraining eviction, arguing that a letter dated 14th December 2015 created a legitimate expectation of lease renewal on which they had relied by increasing stock and marketing. The defendant, the registered proprietor, sought striking out of the plaint, summary judgment for vacant possession on its counterclaim, and eviction with police assistance. On the injunction, the court applied the Giella v Cassman Brown criteria sequentially and held that no prima facie case was established: the leases had expired by effluxion of time, renewal was expressly at the lessor's sole discretion, and the December 2015 letter merely invited renewal applications without constituting a renewal. The application was dismissed. On the defendant's application, applying D.T. Dobie, Job Kilach and Baldev Raj Aggarwal, the court found the plaintiffs' claims of goodwill and legitimate expectation raised no bona fide triable issue, their occupation being without legal, equitable or contractual basis. Summary judgment was entered for the defendant, with the plaintiffs given thirty days to vacate, failing which eviction would ensue under police supervision. The remainder of the counterclaim was set down for assessment of mesne profits, with costs of the suit awarded to the defendant to follow that assessment.

Key legal issues

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01

Whether the plaintiffs established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established; the leases had expired and renewal lay at the defendant's sole discretion

Reasoning

The court held it not disputed that the defendant was the registered proprietor, that the plaintiffs were lessees, and that the leases had expired. The letter of 14th December 2015 merely invited renewal applications and did not renew the leases; there was no evidence the plaintiffs responded. The leases expressly made renewal subject to the lessor's sole discretion. Having no right to occupy beyond the leases, the plaintiffs failed the first Giella limb, making consideration of the other limbs unnecessary.

p. 3
02

Whether the plaint should be struck out and summary judgment entered on the counterclaim

Holding

Yes; no triable issues were raised and the defendant was entitled to vacant possession

Reasoning

Applying the D.T. Dobie principle against striking out suits showing a semblance of a cause of action, and the Job Kilach and Baldev Raj Aggarwal tests for summary judgment, the court examined the pleadings and affidavits. The plaintiffs' case rested on goodwill and legitimate expectation of renewal, but the leases had lapsed by effluxion of time and expressly gave the defendant sole discretion to renew. The defendant elected not to renew and communicated this. Continued occupation was therefore without legal, equitable or contractual basis, raising no triable issue.

p. 4

Legal principles established

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  • A tenant whose lease has expired by effluxion of time, where renewal was at the lessor's sole discretion and was refused, has no legal or equitable interest entitling continued occupation
  • A letter notifying lessees of lease expiry and inviting renewal applications does not constitute renewal of the leases

Court orders

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  1. 1.The Plaintiffs' Notice of Motion dated 26/7/2016 is dismissed for lack of merit
  2. 2.The Defendant's Notice of Motion dated 28/9/2016 is allowed in terms of Prayers (b), (c), (d) and (e) save that the plaintiffs shall have thirty (30) days from the date of the ruling within which to vacate the suit premises
  3. 3.In default of vacating, eviction shall ensue, to be supervised by the Officer Commanding the Police Division within which the suit premises are situated
  4. 4.The rest of the defendant's counterclaim shall be set down for assessment of mesne profits
  5. 5.The defendant shall have costs of the suit, to follow assessment of mesne profits

Authorities

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Legislation

  • Land Registration ActSection 28
  • Land Registration ActSection 25
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 63
  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure RulesOrder 36 Rule 1(1)(b)

Cases cited (13)

  • D.T. DOBIE & COMPANY (KENYA) LTD V JOSEPH MBARIA MUCHINA & ANOTHER
    (1980) eKLR
  • MOI UNIVERSITY V VISHVA BUILDERS LTD
    CA NO. 296 OF 2004 as cited in ISAAC AWUONDO V SURGHIPHARM LTD & ANOTHER, (2011) eKLR
  • GIELLA V CASSMAN BROWN
    (1973) EA 358
  • MRAO V FIRST AMERICAN BANK OF KENYA & 2 OTHERS
    (2003) KLR 125
  • JOB KILACH V NATION GROUP LTD & 2 OTHERS
    (2015) eKLR
  • VELJI SHAMJI CONSTRUCTION V WESTMALL SUPERMARKET LTD
    (2007) eKLR
  • PROP INVEST LTD V AD SCREEN PRINT LTD
    (2013) eKLR
  • NGURUMAN LIMITED V JAN BONDE NIELSEN & 2 OTHERS
    NAIROBI CA NO. 77 OF 2012
  • KENYA COMMERCIAL FINANCE CO. LTD V AFRAHA EDUCATION SOCIETY
    (2001) VOL. 1 EA 86
  • NURU CHEMIST LIMITED & ANOTHER V NATIONAL BANK OF KENYA
    (2008) eKLR
  • YAYA TOWERS LIMITED V TRADE BANK LIMITED (IN LIQUIDATION)
    (2000) eKLR
  • PAOLA MURI V GIAN BATISTA MURI & ANOTHER
    CA No. 59 of 1999
  • BALDEV RAJ AGGARWAL & 2 OTHERS V KAMAL KISHORE AGGARWAL
    (1988) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (suit premises LR No. 209/229/1 Race Course Road, Nairobi)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Kagechu Muiruri t/a Muiruri Auto Parts & 5 others v Kihumo Property Developers (K) Ltd [2017] KEELC 905 (KLR)", Case Analysis (2017). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/905/eng@2017-11-29

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