Westlands Triangle Properties Ltd v Westlands Sundries Limited & 2 others [2020] KEELC 2088 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendants were protected/lawful tenants of the plaintiff
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.
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.
Whether the eviction was unlawful
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.
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.
Whether the defendants were entitled to damages in the counterclaim
No; neither general, aggravated, exemplary nor special damages were proved, and reinstatement was unavailable.
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.
Legal principles established
#- 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
#- 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.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.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.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.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.Costs of the suit to the plaintiff with interest
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court, first-instance civil claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.