Kipkai Enterprises Ltd v Maurine Louise Osembe [2017] KEELC 1624 (KLR)
The bottom line
#A Kenyan landlord recovered over Kshs 5 million from a former tenant for unpaid rent and unauthorized house alterations, with costs.
What this practically means
#Executive summary
#Key legal issues
#Quantum of rent arrears recoverable
Rent arrears of Kshs 2,210,000/- awarded: Kshs 2,000,000/- balance after the Kshs 1,000,000/- part payment and Kshs 419,000/- write-off, plus Kshs 210,000/- for January 2017.
Although the Plaintiff submitted an outstanding rent figure of Kshs 3 million, the record showed the Defendant paid Kshs 1 million (paid via Mr Anders Ostman) and the Plaintiff had written off Kshs 419,000/- in the 25th January 2017 mediation agreement. The court therefore awarded the adjusted balance of Kshs 2 million plus January 2017 rent of Kshs 210,000/-, totalling Kshs 2,210,000/-.
Claim for Kshs 700,000/- repair set-aside
Awarded to the Plaintiff because the Defendant carried out repairs without authority and failed to produce receipts accounting for the monies.
The lease provided that Kshs 70,000/- monthly for 10 months (totaling Kshs 700,000/-) would be withheld from rent and applied to approved repairs, a condition precedent being the Plaintiff's written approval. The Defendant claimed to have done repairs but without authority and without accounting for the sums by way of receipts, so the Plaintiff was entitled to the amount.
Restoration costs for unauthorized alterations
Kshs 2,024,500/- awarded as itemized in the bills of quantities from Kurstan Builders presented in court.
The Plaintiff testified that the Defendant extensively and unauthorizedly demolished and altered the house - reducing it from 3 to 2 bedrooms, demolishing the pantry, removing fittings and mahogany finishes - contrary to the lease. The claim was supported by photographs and an itemized quotation from Kurstan Builders, and the court found the Plaintiff entitled to the restoration cost.
Utility bills (electricity and water)
Kshs 135,000/- for electricity and Kshs 6,000/- for water were pleaded and proved and form part of the total award.
In setting out the total amount pleaded and proved, the court listed electricity at Kshs 135,000/- and water bill at Kshs 6,000/- alongside rent arrears and restoration costs, and these amounts are subsumed in the aggregate judgment sum of Kshs 5,075,500/-.
Legal principles established
#- A claim in a first-instance civil suit is determined on a balance of probability, even in formal proof proceedings after an unrepresented/unresponsive defendant.
- A tenant who undertakes works/repairs without the landlord's written authority and fails to account for them in form of receipts remains liable for the agreed repair set-aside.
Court orders
#- 1.Judgment entered for the Plaintiff in the sum of Kshs 5,075,500/-
- 2.The costs of the suit to be paid by the Defendant
- Jurisdiction invoked
- Original civil jurisdiction; suit instituted by plaint under the Civil Procedure Act and Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkai Enterprises Ltd v Maurine Louise Osembe [2017] KEELC 1624 (KLR)", Case Analysis (2017). Not stated in judgment (plaint dated 31st May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1624/eng@2017-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.