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ELCPartially AllowedELC Case No. 277 of 2017· [2018] KEELC 817 (KLR)

Kariuki Mathu v Registered Trustees of Shilo Tabernacle Church & another [2018] KEELC 817 (KLR)

Environment and Land Court
17 October 2018
CMC.G. Mbogo
1,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that subtenants must leave once the main lease ends, and awarded the landowner damages even without proof of actual loss.

What this practically means

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Executive summary

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The Plaintiff sued the Registered Trustees of Shilo Tabernacle Church and Peter Muthama by plaint dated 15 December 2016, seeking a permanent injunction against trespass on LR No. 12080 Kibwezi, eviction, general damages, and costs. The Defendants were served and entered appearance through Munyasya & Co. Advocates but failed to file a defence despite leave granted on 7 November 2017; the matter proceeded as an undefended suit on 2 July 2018, with the Defendants absent despite service of the hearing notice. The Plaintiff testified as the registered owner of LR 12080, having leased it to Rawji Investment Limited, which irregularly subleased part of it to the Defendants. By a letter dated 25 June 2016 (PEX No. 3), Rawji acknowledged termination of the lease and undertook to give vacant possession, including from what it called 'illegal tenants'. Counsel for the Plaintiff framed four issues, which the court condensed to two: whether the Defendants had trespassed, and whether the Plaintiff was entitled to the prayers sought. The court held that upon termination of the head lease the Defendants became trespassers, trespass being actionable per se, but found no proof of actual loss and awarded nominal damages of Kshs. 150,000. Judgment was entered on a balance of probabilities, granting the permanent injunction, an eviction notice, damages of Kshs. 150,000, and costs and interest of the suit.

Key legal issues

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01

Whether the Defendants were trespassers on the suit property

Holding

Yes - upon termination of Rawji Investment Ltd's lease, the Defendants' continued occupation lacked lawful basis and constituted trespass.

Reasoning

The Plaintiff proved registration as owner of LR 12080. He leased the land to Rawji Investment Limited, which subleased part of the property to the Defendants. Rawji acknowledged termination by letter of 25 June 2016 undertaking to give vacant possession, including from what it called 'illegal tenants'. With the head lease terminated and non-renewal communicated through PEX No. 2, the Defendants' continued occupation was without right, rendering them trespassers.

p. 2
02

Whether the Plaintiff was entitled to damages and, if so, what measure

Holding

The Plaintiff was entitled to nominal damages of Kshs. 150,000, as he did not prove actual loss.

Reasoning

Trespass being actionable per se, the Plaintiff was entitled to damages without proving actual loss. However, counsel gave no particulars of the quantum of loss suffered. Relying on Halsbury's Laws of England (4th Ed., Vol. 45), the court applied the principles that a plaintiff proving trespass recovers nominal damages absent actual loss, and damages for use of land equal a reasonable sum for such use.

p. 2

Legal principles established

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  • Once the head lease is terminated, subtenants in occupation become trespassers on the owner's property.
  • Trespass is actionable per se and entitles the plaintiff to nominal damages even without proof of actual loss.

Court orders

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  1. 1.A permanent injunction restraining the Defendants from trespassing on the Plaintiff's parcel of land being LR No. 12080 at Kibwezi
  2. 2.The Plaintiff to issue eviction notice
  3. 3.Kshs. 150,000 being general damages
  4. 4.Costs and interest of the suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act (land claim for trespass, eviction and injunction)

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, "Kariuki Mathu v Registered Trustees of Shilo Tabernacle Church & another [2018] KEELC 817 (KLR)", Case Analysis (2018). ELC Case No. 277 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/817/eng@2018-10-17

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