Gibson Kamau Kuria v Rachel Wambui Kamau [2018] KEELC 3194 (KLR)
The bottom line
#A Nairobi court confirmed any leaseholder can personally sue a neighbour who fences off or builds on shared gardens and parking areas.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff has locus standi to bring this suit in place of the Management Company
- 2.Whether the Defendant has breached her lease for the Defendant's Maisonette by fencing off with a chain link fence and constructing a servant's quarter on part of the common garden and car park
- 3.Whether the Plaintiff's right of access and use of the said common garden and car park have been breached by the Defendant
- 4.Whether to award the Plaintiff general damages
- 5.Who will bear the costs of this suit
Key legal issues
#Locus standi of a lessee to enforce lease covenants against another lessee in place of the management company
The Plaintiff has locus standi; clause 3 of the Lease grants any leaseholder the right to enforce the covenants, conditions and restrictions against another leaseholder
The court examined clause 3 of the Lease, which records the intention of the company and the manager that the covenants, conditions and restrictions imposed in every lease be enforceable by any lessee for the time being of any maisonette against the occupiers or lessees of the maisonettes. The court held this mutual enforceability provision confers standing on the Plaintiff personally, so he could sue in place of the Management Company.
Breach of lease by fencing off and commencing construction on the common garden and car park
The Defendant is in breach of the Lease by seeking to annex a portion of the common garden and car park to construct a servant's quarter
The Plaintiff testified and adopted his witness statement and documents, including photographs showing the chain link fence and building materials. The Defendant filed no defence and did not appear at the hearing. In the absence of any contravening evidence, the court accepted the Plaintiff's uncontroverted evidence that the Defendant fenced off and annexed part of the common garden and car park for construction, in breach of her lease covenants.
Whether the Plaintiff's rights of access and use of the common parts were breached
Yes - by annexing part of the common garden and car park the Defendant denied the Plaintiff access to and use of the common parts
The court found that the annexation of the portion of the common garden and car park located between the Defendant's Maisonette and the gate servicing all occupants of the estate directly breached the Plaintiff's entitlement, under clause 5 of the lease, to use roads, pathways and parking areas and the garden in common with other owners and occupiers.
Entitlement to general damages
General damages declined for failure to lay grounds demonstrating entitlement
Although the Plaintiff pleaded general damages and testified that the Defendant's actions denied him and his family full enjoyment of the annexed space, the court found that no grounds were laid to demonstrate entitlement to an award under this head, and declined to grant damages. The Plaintiff nevertheless obtained all injunctive reliefs and costs.
Legal principles established
#- A mutual enforceability clause in a lease confers on any lessee the right to enforce the covenants, conditions and restrictions of the lease against another leaseholder, without need to sue through the management company
- Annexation of common parts (garden and car park) by one lessee is a breach of the lease and infringes the other lessees' rights of access and use of the common parts
Court orders
#- 1.Judgment entered against the Defendant in terms of prayer nos. (a) to (e) of the Plaint, namely an injunction to restrain the Defendant from breaching her covenants under her lease made to benefit the Plaintiff's Maisonette, a prohibitory injunction restraining interference with the Plaintiff's user of the common car parks, a mandatory injunction to compel removal of the partition and fence from the common gate, a mandatory injunction to compel removal of the foundation stone and other structures on the common garden, and a prohibitory injunction restraining trespass on the common garden
- 2.Costs of the suit awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning land reference number 1/495, Galana Road, Kilimani, Nairobi
Relief refused
#General damages
The Plaintiff failed to lay grounds demonstrating entitlement to general damages
Costs
Costs of the suit awarded to the Plaintiff
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This clause clearly grants any leaseholder including the Plaintiff the locus standi to enforce the covenants, conditions and restrictions contained in the Lease against another leaseholder such as the Defendant.
In the absence of any contravening evidence, this court finds that the Defendant is in breach of the Lease by seeking to annex a portion of the common garden and car park for the purpose of constructing a servant quarter thereon.
By annexing a part of the common garden and car park located between the Defendant's Maisonette and the gate, the Defendant has denied the Plaintiff the right of access and use of those common parts.
Judgment is entered against the Defendant in terms of prayer nos. (a) to (e) and costs of the suit are awarded to the Plaintiff.
Issues in the judgment
#The coram shows the judgment was signed by Lady Justice Mary M. Gitumbi on 12 April 2018 but delivered at Nairobi by Justice Samson Okong'o on 19 April 2018; the judgment also prints the presiding judge's name as 'SAMSON O. OKONGO' after earlier spelling 'Samson Okong'o'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gibson Kamau Kuria v Rachel Wambui Kamau [2018] KEELC 3194 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3194/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.