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ELCPartially AllowedELC Case No. 36 of 2016· [2021] KEELC 663 (KLR)

Jacob Kaliunga M’mwirabua v Warda Said Abud Msalam & another [2021] KEELC 663 (KLR)

Environment and Land Court
3 December 2021
5,096 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, a tenant in a shop known as 'Junior Grocery' on L.R No. Mombasa/Block XVII/219 since 2000 under a controlled tenancy within the meaning of Cap 301, sued the 1st defendant (daughter of his deceased landlord) and the County Government of Mombasa after his eviction on 14th March 2016. He sought a mandatory injunction to be restored to possession, special damages of Kshs. 2,530,280/=, declarations, permanent injunction, exemplary damages and costs. A BPRT case (No. 128 of 2015) had been determined in his favour on 11th December 2015 with the landlord's notice withdrawn. The 1st defendant denied involvement, asserting the premises belonged to the deceased's estate and that the County Government had issued notices requiring repairs and vacating of a dilapidated building. The 2nd defendant denied involvement and called no evidence. The court held the attempted eviction unlawful: the tenancy was controlled, and no fresh notice under section 4 of Cap 301 was served on the plaintiff before the eviction; the Form PPA 7 notice produced was addressed to a third party. Self-help eviction without a court order or tribunal order was condemned. On quantum, only breakages of Kshs. 113,600/= were strictly proved; claims for repairs, stock loss, cash loss and loss of business failed for want of primary documentation, being guesswork. General damages of Kshs. 500,000/= were awarded, the invited Kshs. 10 million being excessive as the plaintiff returned to the premises within fourteen days. A permanent injunction against wrongful eviction without due process was granted, with costs to the plaintiff.

Key legal issues

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01

Lawfulness of the attempted eviction of a protected tenant

Holding

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

Reasoning

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.

p. 4
02

Proof of special damages for wrongful eviction

Holding

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

Reasoning

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.

p. 5
03

Quantum of general damages for unlawful eviction

Holding

General damages of Kshs. 500,000/= awarded as the plaintiff's loss was minimal, having returned to the premises within fourteen days

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Kshs. 113,600/= awarded for breakages
  2. 2.Kshs. 500,000/= awarded as general damages
  3. 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. 4.Defendants jointly and severally to meet the costs of the suit

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301Section 4

Cases cited (8)

  • Gusii Mwalimu Investment Ltd -Vs- Mwalimu Hotel Kisii Limited
    Civil Appeal No. 160 of 1995
  • Caudonia Supermarket Ltd -Vs- Kenya National Examination Counsel
    (2000) 2 EA 351
  • Richard Okuku Oloo -Vs- South Nyanza Sugar Co. Ltd
    [2013] eKLR
  • Coast Bus Service Limited -v- Murunga & Others
    Nairobi CA No. 192 of 1992 (ur)
  • Kampala City Council -vs- Nakaye
    (1972) EA 446
  • Ouma -v- Nairobi City Council
    [1976] KLR 304 / 1976 (KLR) 297
  • Eldama Ravine Distributors Limited and another -v- Chebon
    Civil Appeal Number 22 of 1991 (UR)
  • Ratcliffe v Evans
    (1892) QB 524
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

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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, "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.