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ELCPartially AllowedELC Case No. 48 of 2016· [2019] KEELC 4064 (KLR)

Hussein Ali Benyoka v Kaydee Quarry Ltd [2019] KEELC 4064 (KLR)

Environment and Land Court
29 March 2019
1,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Mombasa court ended a decades-old quarry lease, ruling a Ksh. 4,000 annual rent was so unfair it could not stand.

What this practically means

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Executive summary

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The plaintiff, Hussein Ali Benyoka, sued Kaydee Quarry Ltd seeking a mandatory injunction, vacant possession, costs and interest over two unregistered parcels of land measuring about 4.94 acres at Kokotoni, Kaliang'ombe Adjudication in Kaloleni. He pleaded that as legal representative of the Estate of Benyoka Mwakoyo, his late father had leased the land to the defendant by an agreement dated 19th February 1978 at a rent of Ksh. 4,000/= per annum, which was far below current market value of about Ksh. 78,000/= per month, and that the defendant refused rent review and continued quarrying and dealing with the land. The defendant contended it had contracted with Stephen Benyoka Mwakoyo and one Benyoka Makoya, had paid rent faithfully since 1978, that no probate confirmation had been shown, that rent was being collected by strangers to the estate, and that no notice of forfeiture had been issued, rendering the suit premature. The court rejected the defence as frivolous, found the plaintiff to be the legal representative of the estate and the owner of the parcels, and held that the Ksh. 4,000/= rent was grossly low and the lease terms unconscionable, unfair and oppressive, applying the Court of Appeal authorities of Margaret Njeru Muiruri v Bank of Baroda (K) Ltd and Kenya Commercial Finance Co. Ltd v Ngeny & Another. Finding the claim proved on a balance of probabilities, the court granted a mandatory injunction restraining the defendant from utilising, quarrying, alienating or selling the land, ordered vacant possession, and awarded costs of the suit to the plaintiff. The interest claim, though prayed, was not included in the final orders.

Key legal issues

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01

Status of the plaintiff as legal representative and owner of the leased land

Holding

The court found the plaintiff to be the legal representative of the Estate of Benyoka Mwakoyo, the owner of the two unregistered parcels, and rejected the defence questioning ownership

Reasoning

PW1 testified that he is the legal representative of the Estate of Benyoka Mwakoyo, producing a grant of letters of administration (PEx2), and the lease agreement (PEx7) was in evidence. The defendant argued it had dealt with Stephen Benyoka and did not know whom to pay rent to, and that no probate confirmation had been provided. The court held the defence frivolous and found the plaintiff had proved his case on a balance of probabilities.

p. 2
02

Whether the rent under the 1978 lease was unconscionable and reviewable

Holding

The rent of Ksh. 4,000/= per annum was grossly low and the lease terms unconscionable, unfair and oppressive and could not stand

Reasoning

Relying on Margaret Njeru Muiruri v Bank of Baroda and Kenya Commercial Finance Co. Ltd v Ngeny & Another, the court held that while parties are bound by their contract, equity intervenes to relieve a party of harsh, unconscionable and oppressive bargains. The defendant admitted the Ksh. 4,000/= rent was far below current value (its own valuation was Kshs 146,000 per annum), so the terms were unreasonably favourable to the defendant and could not be allowed to stand.

p. 2
03

Entitlement to vacant possession and mandatory injunction

Holding

Having proved his case on a balance of probabilities, the plaintiff was granted vacant possession and a mandatory injunction restraining the defendant from dealing with the land

Reasoning

The court found a subsisting lease dated 19th February 1978 between the plaintiff's late father and the defendant, whose terms were oppressive and could not stand. The defendant had no valid basis to remain in occupation on those terms. The court therefore granted the mandatory injunction and vacant possession sought in the plaint, together with costs.

p. 2

Legal principles established

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  • A court of law cannot rewrite a contract with regard to interest as parties are bound by the terms of their contract
  • Courts may refuse to enforce contracts that are unconscionable, unfair or oppressive, or whose terms are unreasonably favourable to one party
  • By its equitable jurisdiction, a court will set aside a bargain which is harsh, unconscionable and oppressive

Court orders

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  1. 1.Mandatory injunction to issue against the defendants from utilizing, quarrying, alienating, selling and or dealing with the unregistered parcel of land forming the lease situated at Kokotoni within Kaliang'ombe Adjudication measuring about 4.94 acres
  2. 2.Vacant possession of the unregistered parcel of land being occupied by the defendants at Kokotoni within Kaliang'ombe Adjudication
  3. 3.Costs of the suit to the plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes); not expressly stated in the judgment

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, "Hussein Ali Benyoka v Kaydee Quarry Ltd [2019] KEELC 4064 (KLR)", Case Analysis (2019). ELC Case No. 48 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4064/eng@2019-03-29

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