Jacob Kaliunga M’mwirabua v Warda Said Abud Msalam & another [2021] KEELC 663 (KLR)
The bottom line
#Kenyan landlords cannot evict tenants by self-help; this Mombasa court awarded damages but only where the tenant proved losses with documents.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the attempted eviction of a protected tenant
The attempted eviction was unlawful because no fresh notice under section 4 of Cap 301 was served after the BPRT withdrew the landlord's notice, and no court or tribunal order for possession existed
The tenancy was a controlled tenancy under Cap 301. The BPRT had on 11.12.2015 determined a termination dispute in the plaintiff's favour by withdrawing the landlord's notice. No evidence showed the plaintiff was served with a fresh statutory notice before 14.3.2016. The Form PPA 7 notice produced was directed to a third party, not the plaintiff. Self-help eviction without a court order cannot be countenanced.
Proof of special damages for wrongful eviction
Only the claim for breakages (Kshs. 113,600/=) was proved; claims for repairs, stock loss, cash loss and loss of business failed for want of strict proof
Although specially pleaded, the claims lacked primary documents: the repair invoice gave a global figure for materials without receipts; the audit report figures for stock and cash had no supporting stock cards, cash books or receipts; the loss-of-business claim contradicted the auditor's report (12 days vs 14 days) and lacked accounts or bank statements.
Quantum of general damages for unlawful eviction
General damages of Kshs. 500,000/= awarded as the plaintiff's loss was minimal, having returned to the premises within fourteen days
The plaintiff proved the unlawfulness of the eviction and was entitled to general damages, but the invited sum of Kshs. 10 million was excessive. The plaintiff returned to the premises in less than fourteen days, so the damage was minimal; a nominal figure with interest at court rates was appropriate.
Legal principles established
#- Unless the tenant consents to give up possession, a landlord must obtain an order of a competent court or statutory tribunal for possession; self-help eviction is unlawful
- Termination of a controlled tenancy requires compliance with section 4 of Cap 301, and notice must be given even if the tenant has lost protected status
- Special damages must be specifically pleaded and strictly proved with certainty and particularity
Court orders
#- 1.Kshs. 113,600/= awarded for breakages
- 2.Kshs. 500,000/= awarded as general damages
- 3.Permanent injunction restraining defendants, their servants and/or agents from wrongfully entering upon and evicting the Plaintiff from the shop known as 'Junior Grocery' on Mombasa/Block XVII/219, Mombasa Island without following due process
- 4.Defendants jointly and severally to meet the costs of the suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land and tenancies (ELC Case No. 36 of 2016, Environment and Land Court at Mombasa)
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, "Jacob Kaliunga M’mwirabua v Warda Said Abud Msalam & another [2021] KEELC 663 (KLR)", Case Analysis (2021). ELC Case No. 36 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/663/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.