Sadru Nanji v Al Nashir Dhanji [2020] KEELC 3171 (KLR)
The bottom line
#A Mombasa court awarded a landlord money for occupation and repairs, but far less than claimed because he proved no basis for his highest figure.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit premises
The plaintiff proved ownership of the suit premises from 12th March 2009 when he purchased and obtained transfer of it.
The plaintiff tendered documentary evidence including the approved transfer form from Jubilee Building Cooperative Society Ltd and the transfer dated 12th March 2009. The defendant laid no claim of ownership, admitting he had no proprietary interest and even suggesting the property go to the Unclaimed Assets Agency. No other party claimed ownership.
Whether the defendant was a trespasser
The defendant became a trespasser only from 16th April 2015, when the plaintiff formally demanded vacant possession; before that he was not a trespasser.
The defendant rented the premises in 1987 from the previous owners and remained in possession as at 12th March 2009. He obtained tribunal orders on 17th June 2009 permitting him to regain possession, which were only quashed by the High Court in judicial review on 20th March 2015. Trespass could only arise from the plaintiff's demand letter of 16/4/15.
Quantum of mesne profits
The plaintiff was entitled to mesne profits but failed to justify the claimed Kshs.40,000 per month; the court assessed reasonable mesne profits at Kshs.4,250 per month from July 2009 to June 2015.
The plaintiff gave no evidence justifying the Kshs.40,000 monthly rate. The last known rent was Kshs.2,500 per month, which had risen from Kshs.1,500 (about 66.66% increase). The court applied a 70% increment to the last rent, arriving at Kshs.4,250 per month as reasonable mesne profits for the relevant period.
Service charge and renovation charges
The plaintiff proved the claim for service charge at Kshs.3,910 per month and renovation charges of Kshs.266,348.60.
The defendant did not dispute that the premises are in a gated community with shared and common services, satisfying the court on the service charge claim. The plaintiff produced documentary evidence, including a valuation report by Maina Chege & Co., supporting the renovation charges claimed.
Legal principles established
#- A person in possession of premises pursuant to a tenancy or tribunal order cannot be termed a trespasser until formal demand for vacant possession is made by the owner.
- Mesne profits must be proved with a basis for the quantum claimed; where none is given, the court may assess reasonable mesne profits by reference to the last known rent.
Court orders
#- 1.Mesne profit at the rate of Kshs.4,250 per month from July 2009 to June 2015 (Kshs.301,750.00)
- 2.Service charge from April 2009 to June 2015 at the rate of Kshs.3,910 per month (Kshs.213,780.00)
- 3.Renovation charges of Kshs.266,348.60
- 4.Costs of the suit
- 5.Interest on (a), (b), (c) and (d) above
- Jurisdiction invoked
- Original civil jurisdiction over the suit premises (land dispute) - no specific constitutional/statutory provision cited in the excerpt
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sadru Nanji v Al Nashir Dhanji [2020] KEELC 3171 (KLR)", Case Analysis (2020). Not stated in the excerpt (Mombasa ELC plaint dated 25th May 2015, amended 23rd March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3171/eng@2020-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.