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ELCPartially AllowedNot stated in judgment (ELC at Kajiado)· [2017] KEELC 1528 (KLR)

Mupekori Pere v Samuel Gicheru & another [2017] KEELC 1528 (KLR)

Environment and Land Court
5 October 2017
2,683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that accepting rent after a lease expires does not stop a landlord from evicting holdover tenants, though they got three months to move out.

What this practically means

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Executive summary

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The Plaintiff, Mepukori Pere, moved the Environment and Land Court at Kajiado by Notice of Motion dated 27th March 2017 seeking a mandatory injunction compelling the Defendants to surrender vacant possession of land reference NGONG/NGONG/57649 at Magadi Road, Ongata Rongai. He relied on an expired lease of 6th June 2013, terminated on 1st June 2015 and extended by mutual agreement, alleging rent arrears and unlawful continued occupation. The 1st Defendant opposed, admitting the lease but blaming the Plaintiff's failure to obtain change of user and remove a Magnate Ventures billboard, admitting only Kshs. 150,000 in arrears, and arguing the Plaintiff should first have gone to arbitration. The court framed four issues: existence of a lease, default in rent, the alleged defective replying affidavit, and entitlement to a mandatory injunction. Relying on sections 60 and 63(2) of the Land Act, it held there was no subsisting lease, that the sub-lessees' rights were extinguished when the head lease expired, and that rent acceptance after expiry did not create a periodic tenancy. Default in rent was established in principle though quantum awaited trial. The affidavit objection failed as a technicality under Article 159(2)(d) and section 19(1) of the ELC Act. Although a mandatory injunction is not normally granted interlocutorily, the court found the case clear and granted relief, but revised it to give three months to vacate. Costs of the application were awarded to the Plaintiff against the Defendants.

Key legal issues

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01

Existence of a subsisting lease between the parties

Holding

There is no subsisting lease, either express or implied, between the Plaintiff and the Defendants; acceptance of rent after expiry does not create consent to continued possession nor a periodic tenancy on the facts

Reasoning

The lease of 6th June 2013 was terminated on 1st June 2015 and extended by mutual agreement, but the court found that in so far as the Defendants remain in possession, rent arrears are admitted and no periodic lease from month to month can be deemed to arise. Section 60 of the Land Act provides that acceptance of rent after termination does not deem the lessor to have consented to the lessee remaining in possession.

p. 3
02

Rights of sub-lessees on the suit land

Holding

The sub-lessees' lease terminated when the head lease expired on 1st June 2015

Reasoning

Relying on section 63(2) of the Land Act, the court held that a sublease does not operate as an assignment of the head lease and a sublease expiring after the head lease is reduced to expire one day before it. Consequently, the sub-lessees' rights were extinguished upon expiry of the head lease.

p. 3
03

Default in rent repayment

Holding

The Defendants have defaulted, but the exact amount of arrears can only be determined at a full hearing

Reasoning

The Defendants admitted arrears of Kshs. 150,000 while the Plaintiff claimed Kshs. 500,000 (earlier pleaded as Kshs. 700,000). The court found default established in principle since the Defendants admitted some arrears, but the precise quantum required trial.

p. 3
04

Whether the 1st Defendant's replying affidavit was defective

Holding

The affidavit was not struck out; the Plaintiff's objection was dismissed as reliance on procedural technicalities

Reasoning

Section 19(1) of the Environment and Land Court Act requires the court to act expeditiously without undue regard to technicalities, and Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities. The court adopted Justice Ochieng's observation that justice is not dependent on rules of technical procedure.

p. 3
05

Entitlement to a mandatory injunction

Holding

The Plaintiff was entitled to mandatory injunctive relief, but the court revised the order to give occupants a three-month grace period to vacate pending trial

Reasoning

Although a mandatory injunction is not normally granted on an interlocutory application absent special circumstances, the court found no subsisting lease, admitted default in rent, and found the Defendants had known of the change-of-user and billboard issues during the lease without suing. The arbitration objection failed for want of an express contractual obligation to arbitrate.

p. 4

Legal principles established

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  • Where a lessee remains in possession after termination of the lease, the lessor's acceptance of rent does not amount to consent to continued possession, and no periodic lease arises if rent is not accepted for two months
  • A sublease cannot outlive the head lease; the sub lessee's lease terminates when the head lease expires
  • Mandatory injunctions on interlocutory applications are granted only in clear cases or special circumstances

Court orders

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  1. 1.The 1st and 2nd Defendants, their agents, servants and/or persons representing them to surrender and/or hand over vacant possession of the suit land being land reference no. NGONG/NGONG/57649 situated at Magadi Road, Ongata Rongai within three (3) months from the date of the order, pending the hearing and determination of the suit
  2. 2.Costs of the application to be borne by the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3, 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2 & 3
  • Land ActSection 60
  • Land ActSection 63(2)
  • Environment and Land Court ActSection 19(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (3)

  • Republic Vs. District Land Registrar, Uasin Gishu & Anor
    (2014) eKLR
  • Kenya Breweries Limited vs. Washington Okeyo
    (2002) EA 109
  • JAMES HEATHER HAYES Vs AFRICA MEDICAL RESEARCH INSTITUTE (AMREF)
    Industrial Court Case No. 626 of 2013
Jurisdiction invoked
Sections 1, 1A, 3, 3A of the Civil Procedure Act and Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules; Environment and Land Court Act

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, "Mupekori Pere v Samuel Gicheru & another [2017] KEELC 1528 (KLR)", Case Analysis (2017). Not stated in judgment (ELC at Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1528/eng@2017-10-05

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