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ELCPartially AllowedNotice of Motion dated 19th September 2018 (suit at Nakuru, Environment and Land Court)· [2019] KEELC 361 (KLR)

Elgon House (2010) Ltd v Meya Agri Traders Limited [2019] KEELC 361 (KLR)

Environment and Land Court
18 December 2019
2,897 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Nakuru court ruled that a company that stayed on after its lease expired must be evicted and pay monthly occupation charges, rejecting its claim to remain as a tenant.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (D. O. Ohungo, J) on the plaintiff's Notice of Motion dated 19th September 2018 seeking to strike out the defendant's statement of defence, or alternatively entry of summary judgment and an order for security for costs, in a claim for eviction and mesne profits from Nakuru Municipality Block 5/43. The lease of 7th February 2008 for 5 years and 1 month expired on 28th February 2013; negotiations for renewal produced a 20th March 2012 offer at KShs 215,000 per month but no new lease was executed, and the defendant remained in occupation without paying rent. The defendant admitted expiry of the lease but asserted an implied controlled tenancy and raised non-compliance with Order 4 Rule 1(4) of the Civil Procedure Rules. The court held that no tenancy, and no controlled tenancy, can arise from mere occupation after expiry of a lease with non-payment of rent; that the defence raised no triable issue; and that failure to comply with Order 4 Rule 1(4) is a curable defect which a defendant cannot exploit as a technicality, in line with Article 159(2)(d). Summary judgment was granted conditionally: the plaintiff was to file a compliant verifying affidavit within 14 days, failing which the motion would stand dismissed with costs. Upon compliance, the defendant was to be evicted, and mesne profits awarded at KShs 215,000 per month from 1st March 2013 with 20% increments every 2 years - not the KShs 500,000 claimed, as the alleged Chegeren Agencies offer could not be verified - plus costs of the motion and suit with interest.

Key legal issues

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01

Whether summary judgment is merited under Order 36 Rule 1 where the defendant admits the lease expired and it remains in occupation

Holding

Summary judgment was warranted; the defence raised no triable issue since the defendant admitted expiry of the lease and continued occupation without paying rent

Reasoning

The suit falls within Order 36 Rule 1 as a landlord's claim for recovery of land and mesne profits against a tenant whose term expired. The defendant admitted the lease lapsed on 28th February 2013, that no new lease was executed, and that it remains in the premises. Its assertion of an implied controlled tenancy was rejected on authority, since no tenancy can exist without payment of rent once the lease has expired.

p. 3
02

Whether non-compliance with Order 4 Rule 1(4) defeats the plaintiff's claim

Holding

No; the defect is curable and the plaintiff was directed to file a compliant verifying affidavit within 14 days

Reasoning

The provision was intended to protect the plaintiff corporation from unauthorised suits on its behalf. It would be illogical and unjust to allow a defendant to invoke it as a technicality to frustrate valid proceedings. Following Spire Bank Limited and the constitutional command in Article 159(2)(d), the court cured the defect rather than dismissing the suit.

p. 3
03

Whether a controlled tenancy arises from continued occupation after expiry of a lease

Holding

No; the defence claim of an implied controlled tenancy was rejected

Reasoning

Relying on Nandlal Jivraj Shah v Kingfisher Properties Limited, the court held that no provision of law creates controlled tenancies by virtue of mere occupation of premises, and non-payment of rent cannot sustain one. Once the lease term ended, the defendant was obliged to hand over vacant possession rather than remain in the premises.

p. 3
04

The quantum of mesne profits

Holding

Mesne profits fixed at KShs 215,000 per month from 1st March 2013 with 20% increments every 2 years, not the KShs 500,000 claimed

Reasoning

The plaintiff based its KShs 500,000 claim on an alleged offer from Chegeren Agencies (E.A) Ltd, which the court could not verify. The defendant's evidence of a 20th March 2012 offer letter from the plaintiff's advocates at KShs 215,000 per month plus VAT was taken as the better aid, being consistent with the expired lease rent of KShs 130,000 with 20% biennial increments.

p. 3

Legal principles established

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  • Failure to comply with Order 4 Rule 1(4) is a curable defect; a defendant cannot use the provision as a technicality to frustrate otherwise valid proceedings
  • No tenancy, let alone a controlled tenancy, arises from mere occupation after expiry of a lease with non-payment of rent
  • A defendant need only show that the defence raises triable issues to be allowed to defend; where bona fide triable issues exist the court has no discretion to deny the right to defend
  • Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities, according precedence to substance over form
  • A landlord whose term has expired is entitled to mesne profits against a tenant holding over

Court orders

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  1. 1.The plaintiff to file and serve a verifying affidavit complying with Order 4 Rule 1(4) of the Civil Procedure Rules within 14 days from delivery of the ruling; in default the Notice of Motion dated 19th September 2018 shall stand dismissed with costs to the defendant
  2. 2.Upon compliance, summary judgment to be entered for the plaintiff: the defendant to be evicted from Nakuru Municipality Block 5/43
  3. 3.Mesne profits at KShs 215,000 per month from 1st March 2013 plus an increment of 20% every 2 years until vacant possession is delivered or the defendant is evicted
  4. 4.Costs of the Notice of Motion dated 19th September 2018 and costs of the suit plus interest thereon
  5. 5.A mention date to be given to confirm compliance with either order (a) or (b)
Jurisdiction invoked
Order 2 Rule 15(1)(b)(c) and (d) and Order 36 Rule 1 of the Civil Procedure Rules; section 3 of the Environment and Land Court Act and Article 159(2)(d) of the Constitution

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, "Elgon House (2010) Ltd v Meya Agri Traders Limited [2019] KEELC 361 (KLR)", Case Analysis (2019). Notice of Motion dated 19th September 2018 (suit at Nakuru, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/361/eng@2019-12-18

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