Boniface Ngure Ndungu v Gathu Holdings Limited & another [2021] KEELC 957 (KLR)
The bottom line
#A Kenyan landlord who locked out a tenant without proving rent arrears was ordered to pay damages and costs, but unproven losses were rejected.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant was in rent default
The court found the Appellant was not in arrears; the respondents produced no evidence of default despite being duty-bound to account for rent received via their own paybill system.
The Appellant's tenancy statement produced by the 2nd Respondent showed the rent account for Unit 34 credited for March, April and May 2015. DW1's explanation of delayed posting was casual and unsupported. Guided by section 112 of the Evidence Act, since the rent records were especially within the respondents' knowledge, the onus of proving arrears lay on them, particularly the managing agent, and they discharged none.
Whether the locking and welding of the door amounted to lawful action
The constructive eviction was unlawful: the respondents acted contrary to section 65 of the Land Act and section 77 governs the consequences of unlawful eviction.
Having found no default and no evidence that reasonable notice was issued, the court held there could be no lawful basis for locking and welding the doors. Locking the house and denying access amounted to constructive eviction contrary to section 77 of the Land Act, entitling the appellant to remedies.
Whether screen shots of MPESA payments were acceptable proof of payment
Screen shots not certified or backed by an MPESA statement showing debits were unacceptable proof of payment, though unchallenged tenancy statements from the respondents' own records were accepted.
The court held that in the absence of the appellant's or his accountant's MPESA statement showing debits, the screen shots were not proof of payment. However, the tenancy statement produced from the 2nd Respondent's records showing credits on 11/5/2015 and 27/5/2015 stood as unchallenged evidence that rent had been received.
Proof of loss of cash, laptop and camera
The claim was rejected in its entirety: no evidence that the cash was left in the house or the house broken into, and no proof of ownership or theft of the high-value items.
The court found the claim of leaving Kshs 970,000 in a drawer implausible for an internationally exposed businessman. For the laptop and camera, being high-value items, receipts were required for proof of ownership; no police abstract or complaint was produced despite police presence at the joint inspection.
Whether the general damages award should be enhanced
The award of Kshs 20,000/- was left undisturbed; the appellant failed to demonstrate any wrong principle or erroneous estimate.
Applying Butt v Khan and Henry Hidaya Ilanga v Manyema Manyoka, the court held that the learned Magistrate considered the statutory violations, inconvenience and ridicule in making the exemplary award, and the appellant gave no reasons warranting disturbance of the award.
Legal principles established
#- On a first appeal the court reviews and re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses
- Where no written lease exists but a party occupies at a periodic rent, the occupation constitutes a periodic tenancy under section 57(2) of the Land Act
- A lessor is under an implied covenant to give the lessee peaceful and quiet possession so long as rent is paid, per section 65 of the Land Act
- An appellate court will not disturb an award of damages unless it is shown the judge proceeded on wrong principles or misapprehended the evidence
Court orders
#- 1.The judgment of the trial Court be and is hereby set aside and substituted as follows
- 2.Prayer (a) is spent
- 3.Prayer no (b) is disallowed
- 4.Prayer no (c) is allowed in the sum of Kshs 37,631/- against the 1st Respondent with interest of 14% from 1/6/2015 until payment in full
- 5.Prayer no (d) in the sum of Kshs 25,000/- in lieu of notice to terminate the subject tenancy with interest at 14% p.a from 1/6/2015 till payment in full
- 6.Prayer no (e) is disallowed
- 7.Prayer no (f) is disallowed
- 8.Special damages as prayed in prayer no (g) is disallowed
- 9.General damages of Kshs 20,000/- in favour of the Appellant with interest of 14%
- 10.The costs of the appeal and the lower Court suit shall be met by the Respondents jointly and severally
- On appeal from
- Chief Magistrate's Court, Thika
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court suit ( memorandum of appeal filed 19/5/2017); no specific constitutional/statutory provision cited
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.
- Kithome & another v Haile & another (Land Case E194 of 2024) [2025] KEELC 4617 (KLR)[2025] KEELC 4617 (KLR)20 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Boniface Ngure Ndungu v Gathu Holdings Limited & another [2021] KEELC 957 (KLR)", Case Analysis (2021). Not stated in the judgment (Memorandum of Appeal filed 19/5/2017 from Thika Chief Magistrate's Court Civil Suit re Amended Plaint dated 30th July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/957/eng@2021-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.