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ELCPartially AllowedELC Suit No. 112 of 2008· [2020] KEELC 2088 (KLR)

Westlands Triangle Properties Ltd v Westlands Sundries Limited & 2 others [2020] KEELC 2088 (KLR)

Environment and Land Court
18 June 2020
8,332 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that sub-tenants without the landlord's written consent have no tenancy rights and can be evicted with no damages.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R No. 209/6368/4 Westlands, sued three occupiers for recovery of possession, mesne profits, an injunction, declarations that they were not protected tenants under Cap 301, damages for trespass and costs. The defendants, who had occupied their shops since the 1970s as sub-occupiers under the head lessees George Njau Mwagiru and later Rosemary Wanja Njau, filed an amended defence and counterclaim seeking reinstatement, general, exemplary, aggravated and special damages for an alleged unlawful eviction on 17 November 2008. The lease required written consent of the head lessor before subletting. The court found no such consent was ever sought or obtained, so the defendants' arrangements did not bind the plaintiff and there was no privity of tenancy. Following the BPRT ruling of 14 November 2008 that it lacked jurisdiction because the defendants were not tenants of the plaintiff, the eviction was lawful. Sitati J's reinstatement order of 28 November 2008 was never effectuated. The defendants failed to prove general, aggravated, exemplary or special damages; their claims were duplicative, speculative and unsupported. Judgment was entered for the plaintiff on recovery of possession with mesne profits from 1 February 2008 to the date of eviction, an injunction, and declarations that the defendants were not controlled tenants and that the plaintiff was a stranger to their occupation arrangements. The counterclaim was dismissed with costs to the plaintiff, which also received costs with interest. Dated, signed and delivered in Nairobi on 18 June 2020 by L. Komingoi J.

Key legal issues

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01

Whether the defendants were protected/lawful tenants of the plaintiff

Holding

They were not; the sub-leases under which they occupied were entered into without the requisite consent of the head lessor and thus not binding on the plaintiff, so there was no privity of tenancy.

Reasoning

The lease between Agip Limited and Westlands Securities prohibited subletting or parting with possession without written consent of the lessor and the President. Rosemary Njau, the successor lessee, never obtained such consent. Relying on Martin M. Odhiambo v Marshalls E.A Ltd, the court held the plaintiff was a stranger to the arrangements, so the defendants were not protected tenants under section 2 of Cap 301 and needed no statutory termination notice.

p. 8
02

Whether the eviction was unlawful

Holding

The eviction was lawful because by the time it occurred the BPRT had ruled it lacked jurisdiction and no orders subsisted in the defendants' favour.

Reasoning

The BPRT ruling of 14 November 2008 held the defendants were not tenants of the plaintiff and vacated earlier orders. Sitati J's reinstatement order of 28 November 2008 was never effectuated by the defendants, who admitted on cross-examination they had done nothing to implement it and never pursued contempt. Consequently the plaintiff proved its case on a balance of probabilities.

p. 8
03

Whether the defendants were entitled to damages in the counterclaim

Holding

No; neither general, aggravated, exemplary nor special damages were proved, and reinstatement was unavailable.

Reasoning

The court found no breach of any recognised right of the defendants. Reinstatement could not issue as the premises had been re-let to new tenants. Special damages, though pleaded, were not strictly proved and the supporting documents could not justify the amounts claimed. The duplicated and speculative heads of loss failed for want of proof.

p. 9

Legal principles established

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  • In the absence of the lessor's requisite written consent, arrangements between the head lessee and sub-occupiers are not binding on the head lessor or its successor in title.
  • Without a valid tenancy relationship there is no protection under Cap 301 and an occupier is not entitled to statutory notice.
  • Special damages must be specifically pleaded and strictly proved; general damages are not available for breach of contract.

Court orders

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  1. 1.Recovery of possession of the units occupied by the 1st, 2nd and 3rd Defendants at the plaintiff's premises known as L.R No. 209/6368/4 at Westlands, with mesne profits calculated at the rate specified in paragraph 23 of the plaint payable monthly from 1st February 2008 to the date of eviction
  2. 2.An injunction restraining the 1st, 2nd and 3rd Defendants severally from using or entering and remaining on the plaintiff's property known as L.R no. 209/6368/4 at Westlands
  3. 3.A declaration that neither the 1st, 2nd nor 3rd Defendant is a tenant or a controlled tenant pursuant to section 2 of the Landlord & Tenant (Shops, Hotels and Catering Establishments) Act cap 301 or at all under that Act
  4. 4.A declaration that the Plaintiff is entitled to vacant possession of the units at the suit premises occupied by the Defendants on and after 31st January 2008
  5. 5.A declaration that the Plaintiff is a third party to the arrangements for occupation made by the Defendants, which were not consented to by the Plaintiff, and that the arrangements do not affect the Plaintiff's right to possession
  6. 6.Costs of the suit to the plaintiff with interest

Authorities

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Legislation

  • Landlord & Tenant (Shops, Hotels and Catering Establishments) Act Cap 301section 2
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) Act Cap 301section 4(2)
  • Landlord & Tenant (Shops, Hotels and Catering Establishments) Act Cap 301section 5
  • Evidence Actsections 118 and 119
  • Interpretation and General Provisions Act (ITPA)section 106
  • Registration of Titles Act (RTA)
  • Civil Procedure RulesOrder XXI Rule 28

Cases cited (30)

  • Martin M. Odhiambo t/a Express Insurance Services v Marshalls E.A Ltd & Another
    [2005] eKLR
  • Joseph Muriithi Njeru v Mary Wanjiru Njuguna & another
    [2018] eKLR
  • Jitendra Mathurdas Kanabar & 2 others v Fish and Meat Limited
    [1997] eKLR
  • Di Koisagat Tea Estate Ltd v Eritrea Orthodox Tewhdo Church Ltd
    [2015] eKLR
  • East African Railways Corporation v Karangi
    [1988] eKLR
  • Mohammed Jaffer v Rent Restriction Tribunal & another
    [2016] eKLR
  • Republic v Ambrose Odwaya Onyango & another ex-parte Ceasar Ngige Wanjao
    [2014] eKLR
  • Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited v Janevams Limited
    [2015] eKLR
  • Capital Fish Kenya Limited v The Kenya Power and Lighting Company Limited
    [2016] eKLR
  • Christine Mwigina Akonya v Samuel Kairu Chege
    [2017] eKLR
  • David Njuguna Ngoth v Family Bank Limited & another
    [2018] eKLR
  • Al-Riaz International Limited v Ganjoni Properties Limited
  • Rajabali Kassam T/A Giraffe Snack Bar v Total Kenya Ltd
  • Caledonia Supermarked Ltd v Kenya National Examinations Council
  • M/S Gusii Mwalimu Investment Co. Ltd & 2 others v M/S Mwalimu Hotel Kisii Ltd
  • Teresia Irungu v Jackton Ocharo & 2 others
  • Haircare Beauticians Ltd v Standard Properties Ltd & ano
  • Nanga Kamau v Patrice Kiiru
  • Semfeb Limited T/A Cinnamon Tree v Dhiren Hair Designer Limited
  • Coach Safaris Limited v Shariff Hussen
    Nairobi HCCC 370 of 1995
  • Kamau Muchua v Ripples Ltd
  • John Kiragu v Rural Electrification Authority
  • Ochako Obinchu v Zachary Oyoti Nyamongo
  • Nakuru Industies Ltd v S.S Mehta & Sons
    [2016] eKLR
  • Obongo v Municipal Council of Kisumu
  • The Nairobi Star Publication Limited v Elizabeth Atieno Oyoo
  • Abdulhamid Ebrahim Ahmed v Municipal Council of Mombasa
  • Kampala City Council v Nakaye S
  • African Highlands Produce Limited v Kisorio
  • Provincial Insurance Co. EA Ltd v Mordekai Mwanga Nadwa
    Kisumu CA Civil Appeal No. 179 of 1995 (UR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court, first-instance civil claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Westlands Triangle Properties Ltd v Westlands Sundries Limited & 2 others [2020] KEELC 2088 (KLR)", Case Analysis (2020). ELC Suit No. 112 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2088/eng@2020-06-18

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