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ELCPartially AllowedELC No. 135 of 2010· [2018] KEELC 4629 (KLR)

Peter Akeng’o Adholla (Suing as the personal representative of Leah Atieno Adholla v City Council of Nairobi & another [2018] KEELC 4629 (KLR)

Environment and Land Court
25 January 2018
KBK. Bor
1,124 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court returned a family's council stall after a caretaker transferred it to himself, rewarding the family's documented proof of tenancy.

What this practically means

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Executive summary

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This dispute concerned City Council of Nairobi Stall Number 44, leased in the 1960s to Zephaniah Marongo Adholla, who ran a butchery with the 2nd Defendant under the name 'Economic Meat and Fish Suppliers'. After Zephaniah's death in 1972, his interest was transferred to his wife, Leah Atieno Adholla, who renamed the business Adholla's Meat Supplies. She entrusted the running of the butchery and the original rent card to the 2nd Defendant when she relocated upcountry after a cancer diagnosis. The Plaintiff learned that the 2nd Defendant had procured a transfer of the stall tenancy to himself in September 2009, having claimed the rent card was lost. The Plaintiff sued for a declaration of bona fide tenancy, an injunction, eviction of the 2nd Defendant, and damages. The 2nd Defendant filed an amended defence and cross-suit claiming he was the lawful tenant by virtue of Rent Card number 5147, alleging a mutual understanding that the Plaintiff surrendered her card in exchange for a house at Umoja Estate. The 1st Defendant, which had revoked the transfer, did not appear at the hearing. The original Plaintiff died in 2012 and was substituted by her son; the 2nd Defendant also died without substitution. The court found the Plaintiff had proved on a balance of probabilities that the stall belonged to his family, granted the orders in the Amended Plaint, dismissed the cross-suit for want of prosecution, and awarded the Plaintiff costs against the 2nd Defendant.

Key legal issues

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01

Ownership of the tenancy in Stall Number 44

Holding

The Plaintiff proved on a balance of probabilities that he is the owner of the stall, which was initially allocated to his father and later to his mother

Reasoning

The Plaintiff testified through his witness statement and produced the rent card, police abstract confirming loss of the original card, minutes of resolution meetings, correspondence from the 1st Defendant including an internal memo finding the transfer unprocedural and negligent, and rates payment receipts. The 1st Defendant did not attend or testify, and the 2nd Defendant had died without substitution, so the Plaintiff's evidence stood substantially uncontroverted.

p. 2
02

Validity of the 2nd Defendant's cross-suit

Holding

The cross-suit was not determined on its merits but dismissed for want of prosecution

Reasoning

The 2nd Defendant died during the pendency of the suit and was never substituted; his cross-suit therefore could not be prosecuted. The court dismissed it for want of prosecution rather than adjudicating his claims to a declaration of tenancy and permanent injunction.

p. 3

Legal principles established

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  • A party claiming rights over a leased council stall must prove them on a balance of probabilities

Court orders

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  1. 1.The orders sought in the Amended Plaint are granted
  2. 2.The cross-suit is dismissed for want of prosecution
  3. 3.The Plaintiff is awarded the costs of the suit against the 2nd Defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (ELC No. 135 of 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, "Peter Akeng’o Adholla (Suing as the personal representative of Leah Atieno Adholla v City Council of Nairobi & another [2018] KEELC 4629 (KLR)", Case Analysis (2018). ELC No. 135 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4629/eng@2018-01-25

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