James Kariuki Kanyeki & another v Blue Water Properties Limited [2021] KEELC 90 (KLR)
The bottom line
#A Mombasa court cancelled a broken lease, banned the tenant from the property, and awarded the landlord Sh86.7 million for damage caused.
What this practically means
#Executive summary
#Key legal issues
#Rescission of the lease for breach
The lease was rescinded because the Defendant breached its refurbishment obligations and Section 66 implied covenants of the Land Act
The Plaintiffs proved they were registered owners of the suit property and had leased it to the Defendant for refurbishment, to be handed back on completion. The Defendant failed to refurbish, vandalised the property and ignored 21-day termination notices. The court found the breach substantial and held the lease rescinded, invoking Section 66(1) implied covenants of the Land Act.
Permanent injunction
A permanent injunction was granted as the Plaintiffs satisfied the Giella v Cassman Brown principles
The court applied the three Giella v Cassman Brown ingredients: the Plaintiffs, as registered owners, established a prima facie case; the wanton destruction showed substantial loss and irreparable harm compensable only by damages; and the balance of convenience favoured granting the injunction to preserve the property.
Special damages
Special damages of Kshs. 86,780,760 awarded on the uncontroverted quantity surveyor's valuation report, applying the Nkuene Dairy Farmers principle
The court held that strict proof of actually incurred special damage was unnecessary; following Nkuene Dairy Farmers Cooperative Society Ltd v Ngacha Ndeiya, the claimant need only show the extent of damage and restoration cost. The uncontroverted Site Survey and Valuation report by Shelta Costs Solution Limited quantified restoration at Kshs. 86,780,760.
Legal principles established
#- Special damages in a material damages claim need not be shown to have actually been incurred; the claimant need only show the extent of the damage and the cost of restoration
- Implied covenants under Section 66 of the Land Act bind every lessee to yield up buildings in the same condition and keep them in reasonable repair
Court orders
#- 1.A declaration that the Lease Agreement made on 28th May 2014 between the Plaintiffs and the Defendant is rescinded for failing to comply with the obligations under the lease and Section 66 of the Land Act 2012
- 2.A permanent injunction against the Defendant, her agents and/or appointed Attorneys from further acts of vandalism and wanton destruction on property known as Land Reg. No. MOMBASA/BLOCK XX VI/941 Chambilo Road, by denying access by the Defendant into the property
- 3.Special damages of Kshs. 86,780,760.00 awarded jointly and severally against the Defendant
- 4.Costs of the suit to the Plaintiffs, to be borne by the Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (formal proof after interlocutory judgment under Order 10 Rule 4 of the Civil Procedure Rules, 2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kariuki Kanyeki & another v Blue Water Properties Limited [2021] KEELC 90 (KLR)", Case Analysis (2021). ELC NO. E02 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/90/eng@2021-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.