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ELCPartially AllowedNot stated in the judgment as provided· [2020] KEELC 1998 (KLR)

Josiah Nyika Muia v Jairo Atenya Asitiba [2020] KEELC 1998 (KLR)

Environment and Land Court
15 June 2020
BEB M Eboso
1,219 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 confirmed a land buyer's right to collect rent from his property but denied him vacant possession and rent refunds because tenants were not sued and the money was not proven.

What this practically means

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Executive summary

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The plaintiff sued by a plaint dated 8/8/2011 (amended 27/12/2012) claiming that he purchased LR 12666/1, a five-bedroomed maisonette in Villa Imara Development Project, Imara Daima, Nairobi, from the defendant under a sale agreement dated 26/4/2011 for Kshs 3,800,000, drawn by an advocate. Having paid the full purchase price and been issued a new allotment letter, he was entitled to vacant possession, which the defendant failed to give; the defendant instead continued to demand and receive rent of Kshs 60,000 per month from tenants. The plaintiff sought a permanent injunction against the defendant receiving rent, an order for vacant possession upon a one month notice to tenants, refund of all rent collected, costs and interest. The defendant's defence, filed 21/10/2011, was that the transaction was a land exchange not completed because the plaintiff failed to honour his obligations. At the hearing on 22/1/2020 the plaintiff testified as PW1 and adopted his written statement; the defendant, despite filing a defence, led no evidence. The court framed two issues: entitlement to the prayers and costs. It held that the plaintiff had proved his case on a balance of probabilities against the defendant. However, the vacant possession prayer, being directed at tenants who were not parties, could not be granted, and the claim for rent collected failed as unproved special damages for want of conclusive or valuer's evidence. Judgment was entered partially for the plaintiff on 15/6/2020.

Key legal issues

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01

Whether the plaintiff proved his claim against the defendant

Holding

Yes - the case was proved on a balance of probabilities since the defendant filed a defence but led no evidence

Reasoning

The defendant filed a statement of defence contesting the claim but did not adduce any evidence. The court found the plaintiff's evidence uncontroverted: a sale agreement for LR 12666/1 at Kshs 3,800,000 was executed, the full purchase price paid, and the defendant continued demanding and receiving rent from tenants despite the sale. The absence of title or search documents was noted but did not defeat the claim against the defendant.

p. 2
02

Whether vacant possession could be ordered against the tenants

Holding

No - the tenants are not parties and adverse orders cannot issue against them

Reasoning

Prayer 2 targeted tenants who were not joined to the suit. The court held the plaintiff bears the legal obligation to notify the tenants to vacate or pay rent to him, and any action against the tenants must be brought separately against them. Until then, issuing adverse orders against the tenants would be irregular.

p. 2
03

Whether the claim for rent of Kshs 60,000 per month collected by the defendant was payable

Holding

No - it failed for lack of proof of special damages

Reasoning

The claim for rent collected at Kshs 60,000 per month was characterized as special damages requiring conclusive evidence. The plaintiff did not tender evidence sufficient to establish the amount collected, and should have led valuer's evidence at the very least. For lack of proof, that limb of the claim failed.

p. 2

Legal principles established

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  • A court will not grant adverse orders against persons who are not parties to the suit
  • Special damages must be specifically pleaded and strictly proved with evidence
  • Where a defendant leads no evidence to controvert the plaintiff's claim, uncontroverted evidence proves the claim on a balance of probabilities

Court orders

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  1. 1.The defendant together with his agents/servants are permanently restrained from demanding or receiving monthly rents or any other rents in respect of the property known as Land Reference Number 12666/1 situated in Villa Imara Development Project, Imara Daima, Nairobi
  2. 2.The plaintiff is at liberty to issue appropriate directions to any tenant(s) occupying the suit property relating to payment of rent and/or termination of tenancy
  3. 3.The defendant shall bear costs of this suit

Authorities

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Legislation

  • Law of Contract ActSection 3

Cases cited (3)

  • Solomon Ndegwa Kuria v Peter Nditu Gitau
    [2019] eKLR
  • Gitonga Wambugu Kariuki & 2 others v Eliud Timothy Mwamunga
    [2018] eKLR
  • Alto Homes Limited & another v Davis Nathan Chelogoi & 2 others
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land known as LR 12666/1, Villa Imara Development Project, Imara Daima, Nairobi

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, "Josiah Nyika Muia v Jairo Atenya Asitiba [2020] KEELC 1998 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1998/eng@2020-06-15

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