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ELCAllowedELC Case No. 181 of 2018 (Formerly Nairobi ELC 438 of 2014)· [2018] KEELC 1736 (KLR)

L. P. Holdings Limited & another v Isaac Ngige Njoroge [2018] KEELC 1736 (KLR)

Environment and Land Court
28 September 2018
LGL. Gacheru
2,002 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 forfeited an apartment lease over unpaid charges, confirming landlords can still win even when tenants never show up to defend the case.

What this practically means

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Executive summary

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The Plaintiffs, L. P. Holdings Limited (owner of Dhanjay Apartments erected on LR.No.330/797, Nairobi, having acquired the property from Akiba Loans & Finances Ltd through Tala Investments Ltd) and Fedha (Management) Limited (the appointed Manager), sued the Defendant for forfeiture of the lease of Apartment No.506, eviction, special damages of Kshs.1,833,588/55 for outstanding land rent, service charge, electricity and water bills as at 31st August 2013, further outstanding sums, mesne profits at Kshs.50,000/= per month and costs. They alleged that under Clause 5 of the Lease dated 7th September 1993 the Defendant covenanted to pay all charges and outgoings, that he fell into persistent arrears, and that Clause 8 permitted forfeiture and re-entry for unpaid charges. The Defendant, though served, neither entered appearance nor filed a defence; interlocutory judgment was entered on 13th August 2014 and the matter proceeded to formal proof before L. Gacheru J. PW1, Abraham Muriuki Munene, a director of both Plaintiffs, adopted his witness statement and produced documentary evidence of title, the lease and the arrears. The court held that even in an undefended matter the Plaintiffs bore the burden of proof on a balance of probabilities under Sections 107 and 109 of the Evidence Act, and found that the evidence established the chain of title, the Defendant's assumption of Henry Chasia's lease obligations via the indenture, and the breach. Judgment was entered for the Plaintiffs in full: forfeiture of the lease, eviction and vacant possession, special damages with interest, further outstanding sums to the date of vacation, mesne profits, and costs of the suit.

Key legal issues

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01

Burden of proof in undefended/formal proof suits

Holding

The Plaintiffs, as the alleging parties, had to prove their case on a balance of probabilities notwithstanding the Defendant's non-appearance

Reasoning

The court invoked Sections 107 and 109 of the Evidence Act to state that whoever desires a court to give judgment on asserted facts must prove them. Although the matter was undefended and interlocutory judgment had been entered, the Plaintiffs still had to lead sufficient evidence at formal proof, which the court found they had done.

p. 2
02

Forfeiture of lease for breach of covenant to pay outgoings

Holding

The Defendant's failure to pay land rent, service charge and utilities constituted breach of the Lease, entitling forfeiture and re-entry under Clause 8

Reasoning

The court found the chain of title proved: Akiba Loans & Finances Ltd conveyed the property to Tala Investments Ltd (later L.P. Holdings Ltd), and Henry Chasia sold Apartment No.506 to the Defendant via an indenture of 10th August 2004, transferring the lease obligations. Clause 8:1.2 permitted re-entry upon breach. The Defendant did not controvert the evidence, and the court saw no reason to doubt it.

p. 3

Legal principles established

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  • Even in an unopposed suit, the plaintiff bears the burden of proving its case on a balance of probabilities

Court orders

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  1. 1.A declaration and order that the Lease to the Defendant by the 1st Plaintiff of Apartment No.506 of the Dhanjay Apartments erected on LR.No.330/797 has been forfeited
  2. 2.An order of eviction of the Defendant from Apartment No.506 of the Dhanjay Apartments erected on LR.No.330/797 and delivery of vacant possession to the Plaintiffs
  3. 3.Special damages of Kshs.1,833,588/55 with interest on outstanding Land Rent, Service Charge, electricity and Water Bill (totalling Kshs.1,072,167/75) at the rate set out in paragraph 10 as from 31st August 2013
  4. 4.Any further outstanding sum on account of Land Rent, Service Charge, Electricity and Water Bill with interest at the rate set out in paragraph 10 as from 31st August 2013 to the date of vacation
  5. 5.Mesne profits at Kshs.50,000/= per month from the date of expiry of the notice in paragraph 13 until possession is delivered, with interest at court rates
  6. 6.Costs of the suit to the Plaintiffs

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 109
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (not expressly stated in the judgment)

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, "L. P. Holdings Limited & another v Isaac Ngige Njoroge [2018] KEELC 1736 (KLR)", Case Analysis (2018). ELC Case No. 181 of 2018 (Formerly Nairobi ELC 438 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1736/eng@2018-09-28

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