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ELCPartially AllowedNot stated in the judgment as reproduced· [2018] KEELC 4028 (KLR)

Ktda Farmers Company Limited v Kei Matt Limited [2018] KEELC 4028 (KLR)

Environment and Land Court
20 March 2018
BEB M Eboso
2,615 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 ordered Uchumi Supermarkets to vacate KTDA's premises within 30 days after its lease expired, warning that holdover tenants become trespassers.

What this practically means

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Executive summary

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The plaintiff, proprietor of LR No 209/7035 on Moi Avenue, Nairobi, leased shop space to the defendant for six years from 1/2/2012. Before expiry, on 9/6/2017, it sued claiming forfeiture of the lease, vacant possession, rent arrears of Kshs 19,341,406.50 as at 31/3/2017 with interest, and costs, alleging the defendant had fallen into rent arrears. The defendant entered appearance on 21/7/2017 but never filed a defence. The plaintiff then moved by notice of motion dated 13/2/2018 seeking forfeiture of the lease and an order compelling the defendant to vacate. The defendant opposed through grounds of contention that the supporting affidavit was sworn by Joseph Karanja, a stranger to the lease lacking authority. The court identified three issues: competency of the supporting affidavit, availability of forfeiture, and entitlement to a mandatory injunction at the interlocutory stage. It held the affidavit was competent, Karanja swearing it as a witness with personal knowledge, and Section 37 of the Companies Act does not invalidate it. It held forfeiture unavailable because the lease expired on 31/1/2018 without renewal, making the defendant a trespasser. Applying Locabail, it found a clear case and special circumstances for a mandatory injunction, given the expiry, unpaid rent, undefended suit and uncontroverted evidence. The motion succeeded in terms of prayer 3: the defendant was ordered to vacate within 30 days, failing which the plaintiff may evict, with police ensuring order; the remainder of the claim proceeds to formal proof.

Key legal issues

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01

Competency of the supporting affidavit sworn by the property manager of the managing agent

Holding

The affidavit was competent; the deponent swore it as a witness with personal knowledge and Section 37 of the Companies Act does not invalidate such an affidavit.

Reasoning

The court treated an affidavit as evidence with the deponent as a witness. Joseph Karanja described himself as Property Manager of the management company managing the suit premises, with personal knowledge of the matters in dispute. Scrutiny revealed nothing rendering the affidavit inadmissible. Section 37 of the Companies Act 2015 concerns execution of documents, not affidavits, and the grounds of opposition did not challenge the validity of the suit itself. The motion was therefore properly before the court.

p. 3
02

Availability of forfeiture where the lease has expired

Holding

Forfeiture was not available; the lease had expired by effluxion of time and the defendant was a trespasser.

Reasoning

Forfeiture prematurely determines an existing lease during its subsistence. Here the six-year term expired on 31/1/2018 with no renewal or other tenancy. The defendant's continued occupation was therefore without lawful basis, making it a trespasser, and the common law remedy of forfeiture, available only during the subsistence of a lease, could no longer lie.

p. 3
03

Grant of a mandatory injunction at the interlocutory stage

Holding

A mandatory injunction was granted because the case was clear: the lease had expired, rent was unpaid, the suit was undefended, and the defendant's evidence was uncontroverted.

Reasoning

Applying the Locabail test, such relief is granted with caution and only in a clear case. Here the lease had expired with no other tenancy, rent arrears of over Kshs 19 million existed with no evidence of payment, the defendant never filed a defence despite appearance, and it elected not to file a replying affidavit, leaving the plaintiff's evidence uncontroverted. The totality constituted special circumstances justifying the rare interlocutory mandatory order.

p. 3

Legal principles established

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  • A deponent who swears an affidavit in his capacity as a witness with personal knowledge of the matters in dispute is a competent witness, and Section 37 of the Companies Act, which deals with execution of documents by companies, does not render such an affidavit inadmissible.
  • Upon expiry of a lease by effluxion of time without renewal, the remedy of forfeiture is unavailable and the continued occupier is a trespasser.
  • A mandatory injunction at the interlocutory stage will only be granted in a clear case and upon special circumstances.

Court orders

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  1. 1.The notice of motion dated 13/2/2018 succeeds and is granted in terms of prayer 3
  2. 2.The defendant shall vacate the suit premises within 30 days
  3. 3.In default, the plaintiff shall be at liberty to evict the defendant
  4. 4.The Police Commander in Charge of Nairobi City County shall ensure law and order are maintained during the eviction
  5. 5.The rest of the plaintiff's claim shall proceed to hearing (formal proof) as an undefended cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 48
  • Environment and Land Court Act, 2011Sections 3, 13
  • Land Act, 2012Section 73(2)(b)
  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure Rules, 2010Order 1 rule 13, Order 4 rule 1(4), Order 7 rule 1, Order 19, Order 40 rules 1 and 2, Order 51 rule 1
  • Companies Act, No 17 of 2015Section 37
  • Oaths & Statutory Declarations Act (Cap 15)Not specified
  • Evidence Act (Cap 80)Part V

Cases cited (2)

  • R v Registrar General & 13 others
    (2013) eKLR
  • Locabail International Finance Ltd v Agroexport
    (1986) 1 All ER 901
Jurisdiction invoked
Articles 40 and 48 of the Constitution of Kenya 2010; Sections 3 and 13 of the Environment and Land Court Act, 2011; Section 73(2)(b) of the Land Act, 2012; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 40 rules 1 and 2 and Order 51 rule 1 of the Civil Procedure Rules 2010

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, "Ktda Farmers Company Limited v Kei Matt Limited [2018] KEELC 4028 (KLR)", Case Analysis (2018). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4028/eng@2018-03-20

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