Mepukori Pere v Samuel Gicheru & another [2021] KEELC 1984 (KLR)
The bottom line
#A Kenyan court evicted tenants who overstayed their lease and ordered them to pay over Kshs 3.5 million in arrears, damages and profits.
What this practically means
#Executive summary
#Key legal issues
#Whether an eviction order should issue against the Defendants
Yes. The Plaintiff is the registered proprietor; the lease expired, was extended to 30th August 2016 with a direction to give vacant possession, and the Defendants defaulted and remained in possession without consent. The Defendants, having filed no defence, left the averments uncontroverted.
The Certificate of Title proved ownership. The Lease Agreement of 6th June 2013 expired on 1st June 2015 and was extended by mutual agreement recorded in minutes of a meeting of 1st March 2016 before the Ongata Rongai Chief, requiring the tenant to clear arrears and deliver vacant possession by 30th August 2016. Section 60 of the Land Act keeps lessee obligations alive after expiry and deems acceptance of rent not to be consent to continued occupation. The Defendants never filed a defence, and a mandatory injunction of 5th October 2017 had already directed delivery of vacant possession. Applying Kasturi Limited v Nyeri Wholesalers Limited, the Plaintiff was entitled to evict.
Whether the Plaintiff is entitled to recovery of rent arrears
Yes. The Defendants are liable to pay rent arrears of Kshs. 2,050,000 as at 28th February 2020 and to continue paying monthly rent until vacant possession is granted.
The Defendants never controverted the Plaintiff's averments of arrears. Minutes of the 1st March 2016 meeting before the Chief recorded arrears of eight months at Kshs. 50,000 totalling Kshs. 450,000, showing the Defendants were aware of and never denied the arrears. Under Section 60 of the Land Act the lessee's obligations continue after expiry of the lease while the lessee remains in possession. The Defendants tendered no evidence to contradict the quantified arrears, and the Plaintiff discharged his burden of proof.
Whether the Plaintiff is entitled to general damages and mesne profits
Yes. The Plaintiff was awarded Kshs. 500,000 as general damages and Kshs. 1,000,000 as mesne profits.
Mesne profits are defined in Section 2 of the Civil Procedure Act as profits received, or which might with ordinary diligence have been received, by a person in wrongful possession. Order 21 Rule 13 of the Civil Procedure Rules allows a decree for rent or mesne profits accrued prior to institution. The Plaintiff pleaded mesne profits, produced the expired Lease Agreement confirming the rent payable, produced the Chief's minutes confirming arrears, and the BPRT order showed the Defendants had subleased the premises to a third party. Relying on Peter Mwangi Mbuthia v Samow Edin Osman, the court found the Plaintiff placed material demonstrating how the amounts were arrived at and discharged his burden.
Costs of the suit
Costs awarded to the Plaintiff, who was the inconvenienced party.
Having succeeded on all heads, and being the party inconvenienced by the Defendants' continued occupation of the suit land without paying rent, the Plaintiff was held entitled to the costs of the suit.
Legal principles established
#- A lessee who remains in possession after termination or expiry of a lease continues to be bound by the lease obligations, and a lessor's acceptance of rent after termination is not consent to the lessee remaining in possession
- A tenant cannot impose or force himself on a landlord; when a lease expires it is incumbent upon the tenant to give vacant possession
- A claimant for mesne profits must place material before the court demonstrating how the amount claimed was arrived at
Court orders
#- 1.A declaration that the Plaintiff is the rightful owner of all that Parcel of Land known as Land Reference Number NGONG/NGONG/57649 situated at Magadi Road, Ongata Rongai
- 2.An order of eviction against the Defendants jointly and severally from the suit land after Ninety (90) days from the date of judgment, and the Plaintiff is at liberty to apply for it
- 3.The Defendants to pay rent arrears amounting to Kshs. 2,050,000/= as at 28th February 2020 and continue to pay the outstanding monthly rent until they grant vacant possession
- 4.Mesne profits of Kshs. 1 million awarded to the Plaintiff to be paid by the Defendants
- 5.General damages of Kshs. 500,000 awarded to the Plaintiff
- 6.An order to the Officer Commanding Police Division Ongata Rongai and Officer in Charge of Police Station Ongata Rongai to ensure full compliance of the court order
- 7.Costs of the suit awarded to the Plaintiff to be borne by the Defendants
- 8.Interest on the rent arrears, mesne profits and general damages at court rates until payment in full
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); suit commenced by Plaint dated 27th March 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mepukori Pere v Samuel Gicheru & another [2021] KEELC 1984 (KLR)", Case Analysis (2021). ELC. Case No. 572 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1984/eng@2021-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.