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ELCPartially AllowedThika High Court Civil Appeal (from Thika CMCC No. 1037 of 2010)· [2019] KEELC 2623 (KLR)

Daniel K Gitau t/a Camp David Plaza v Lucy Wangari Maina [2019] KEELC 2623 (KLR)

Environment and Land Court of Kenya (sitting at Thika, formerly High Court)
14 June 2019
LGL.N. GACHERUGOG.M.A ONGONDO
2,618 words in judgment
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The bottom line

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A Kenyan court cut a landlord-tenant damages award from Kshs 1 million to 200,000, confirming the landlord breached quiet enjoyment but rejecting the tenant's full claim for compensation.

What this practically means

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Executive summary

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This was a first appeal from the judgment of Hon Martha W Mutuku (Senior Principal Magistrate) in Thika CMCC No. 1037 of 2010 delivered on 3rd July 2015. The respondent, a flour miller, had leased Shop No. GF2, Camp David Plaza, Juja from the appellant under a six-year lease at Kshs 11,000 monthly rent. She claimed the appellant breached the covenant for quiet enjoyment by disconnecting power and evicting her, and sought a permanent injunction, damages, costs and interest. The appellant denied the claim and counterclaimed for Kshs 253,300 for cracks to the building and loss of rental income allegedly caused by the posho mill. The trial court found the covenant breached, dismissed the counterclaim, and awarded the respondent Kshs 1,000,000 general damages plus costs and interest. On appeal, the court re-evaluated the evidence under the standard applicable to first appeals. It confirmed the trial court's jurisdiction as against the Business Premises Rent Tribunal under Cap 301, upheld the validity of the tenancy agreement binding the parties, and found no basis to disturb the dismissal of the counterclaim, noting the appellant lacked receipts or reports and that the damage was not attributable to the respondent. However, holding that the award of Kshs 1,000,000 was out rightly excessive and unfair, the court reduced general damages to Kshs 200,000. The appeal was found partially merited and partially dismissed; the trial judgment was confirmed save for the reduced quantum. By dint of the proviso to section 27(1) of the Civil Procedure Act, each party was ordered to bear their own costs of the appeal and the trial court.

Key legal issues

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01

Trial court's jurisdiction over the landlord-tenant dispute

Holding

The trial court had jurisdiction notwithstanding the Business Premises Rent Tribunal's jurisdiction under Cap 301

Reasoning

Relying on Samwel Kamau Macharia, the court held jurisdiction flows from the Constitution or statute. Considering the terms of P Exhibit 1 and D Exhibit 2 vis-à-vis the prescribed jurisdiction of the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301, the court concluded the trial court was properly seized of the dispute between landlord and tenant.

p. 4
02

Existence and validity of the tenancy agreement

Holding

There was a valid tenancy agreement binding both parties

Reasoning

Both P Exhibit 1 and D Exhibit 1 revealed a tenancy agreement over the suit premises. The trial magistrate had held the parties were bound by it. Applying the Bachelors Butchery decision and the doctrine of equity under Article 10(2)(b) of the Constitution, the court affirmed that the exhibits remained valid and binding between the parties.

p. 4
03

Dismissal of the appellant's counterclaim for damage caused by the posho mill

Holding

The counterclaim was properly dismissed; the appellant failed to prove loss caused by the respondent

Reasoning

The trial court found the damage to the appellant's property was not the fault of the plaintiff and that there was no evidence that the premises remained unoccupied for seven months because of the posho mill. DW1 admitted in cross-examination that he did not know the tenants and had no receipts or reports relating to the tenancy. The court found the trial magistrate properly directed herself on the facts and law.

p. 5
04

Whether the award of Kshs 1,000,000 general damages was excessive

Holding

The award was excessive; it was reduced to Kshs 200,000

Reasoning

While damages awards are discretionary and depend on the circumstances of each case, the court found the sum of Kshs 1,000,000 out rightly excessive and unfair in the circumstances. The respondent was entitled only to a modest and just sum. Exercising appellate discretion, the court substituted an award of Kshs 200,000 in lieu of the trial court's one million shillings.

p. 5

Legal principles established

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  • Jurisdiction of a court or tribunal flows from either the Constitution or statute or both
  • A first appellate court must reconsider and re-evaluate the evidence on record and draw its own conclusions, bearing in mind it did not see or hear the witnesses
  • An appellate court will not ordinarily interfere with findings of fact by the trial court unless based on no evidence, misapprehension of evidence, or wrong principles
  • The award of general damages is within the discretion of the court and depends on the circumstances of each case

Court orders

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  1. 1.The appeal be and is hereby partially dismissed
  2. 2.The judgment of the learned trial magistrate delivered on 3rd July 2015 is confirmed save for the amount of general damages, which is reduced to Kshs 200,000 (two hundred thousand)
  3. 3.Each party to bear their own costs of this appeal and those of the trial court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 23(c)
  • Constitution of Kenya, 2010Article 10(2)(b)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActCap 301
  • Civil Procedure ActSection 27(1) (proviso), Cap 21
  • Practice Directions, 2014 (Environment and Land Court)Practice direction number 33(b)

Cases cited (9)

  • Williamson Diamonds Limited -vs- Brown
    (1970) EA 1
  • Kamau -vs- Mungai and another
    (2006) 1 KLR 150
  • Peters -vs- Sunday Post
    (1958) EA 424
  • Mwanasokoni -vs- Kenya Bus Services Ltd
    (1982-88) 1 KLR 278
  • Siree -vs- Lake Turkana El Molo Lodges Limited
    (2000) 2 EA 521 (CAK)
  • Kanu National Elections Board -vs- Salah Yakub Farah
    (2018) eKLR
  • Owners and Masters of Motor Vessel 'Joey' - Owners and Bachelor Bakery Limited -vs- Wetlands Securities Limited (Bachelors Butchery case)
    (1982) KLR 316
  • Samwel Kamau Macharia and another -vs- Kenya Commercial Bank and two (2) others
    (2012) eKLR
  • Mumias Sugar Company Limited -vs- Wanalo
    (2007) KLR 74
On appeal from
Thika Chief Magistrate's Court (Senior Principal Magistrate)
CMCC Number 1037 of 2010
Jurisdiction invoked
First appellate jurisdiction over appeals from magistrates' courts; trial court's jurisdiction confirmed vis-à-vis the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301

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, "Daniel K Gitau t/a Camp David Plaza v Lucy Wangari Maina [2019] KEELC 2623 (KLR)", Case Analysis (2019). Thika High Court Civil Appeal (from Thika CMCC No. 1037 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2623/eng@2019-06-14

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