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ELCAllowedELC. Case No. 572 of 2017· [2021] KEELC 1984 (KLR)

Mepukori Pere v Samuel Gicheru & another [2021] KEELC 1984 (KLR)

Environment and Land Court of Kenya
16 September 2021
3,319 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, registered proprietor of LR NGONG/NGONG/57649 on Magadi Road, Ongata Rongai, sued the Defendants for a declaration of ownership, eviction, rent arrears, mesne profits and general damages. The lease dated 6th June 2013 terminated on 1st June 2015 and was extended by a mediated agreement of 1st March 2016 before the Ongata Rongai Chief, under which the Defendants were to clear arrears of Kshs. 450,000 and deliver vacant possession by 30th August 2016. They neither paid nor vacated, and a mandatory injunction issued on 5th October 2017 went unheeded. The Defendants, though served, filed no defence; their averments went uncontroverted, though they later filed written submissions disputing default, notice, and quantification, invoking estoppel and the burden of proof. The court framed four issues: eviction, rent arrears, general damages and mesne profits, and costs. Applying Section 60 of the Land Act, the court held that acceptance of rent after termination is not consent to continued occupation and that lessee obligations persist while the lessee remains in possession. It applied Kasturi Limited v Nyeri Wholesalers Limited on a tenant's duty to give vacant possession, and Peter Mwangi Mbuthia v Samow Edin Osman on quantification of mesne profits. Finding the Plaintiff had discharged his burden, the court entered judgment for the Plaintiff: a declaration of ownership; eviction after ninety days; rent arrears of Kshs. 2,050,000 as at 28th February 2020 plus continuing monthly rent; mesne profits of Kshs. 1 million; general damages of Kshs. 500,000; police compliance orders; costs to the Plaintiff; and interest on the monetary awards at court rates until payment in full.

Key legal issues

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01

Whether an eviction order should issue against the Defendants

Holding

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.

Reasoning

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.

p. 3
02

Whether the Plaintiff is entitled to recovery of rent arrears

Holding

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.

Reasoning

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.

p. 3
03

Whether the Plaintiff is entitled to general damages and mesne profits

Holding

Yes. The Plaintiff was awarded Kshs. 500,000 as general damages and Kshs. 1,000,000 as mesne profits.

Reasoning

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.

p. 4
04

Costs of the suit

Holding

Costs awarded to the Plaintiff, who was the inconvenienced party.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Mesne profits of Kshs. 1 million awarded to the Plaintiff to be paid by the Defendants
  5. 5.General damages of Kshs. 500,000 awarded to the Plaintiff
  6. 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. 7.Costs of the suit awarded to the Plaintiff to be borne by the Defendants
  8. 8.Interest on the rent arrears, mesne profits and general damages at court rates until payment in full

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land ActSection 60 (also cited as Section 57(c) and 57(4) by the Defendants)
  • Evidence ActSections 109 and 112
  • Civil Procedure Act (Cap 21)Section 2 (definition of mesne profits)
  • Civil Procedure RulesOrder 21 Rule 13

Cases cited (12)

  • Joseph Kang'ethe Irungu v Peter Ng'ang'a Muchoko
    (2018) eKLR
  • Bhanganji Dayalal v Mombasa Calibratin Service Limited & 3 Others
    (2018) eKLR
  • Republic V Rosemary Wairimu Munene, Ex parte Applicant Vs Ihururu Dairy Farmers Cooperative Society
  • Miller v Minister of Pension
    (1947) 2 ALL ER 372
  • Eastern Produce (K) Ltd- Chemomi Tea Estate v Bonfas Shoya
    (2018) eKLR
  • Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another
    (2005) 1EA 334
  • Trust Bank Limited vs Paramount Universal Bank Limited & 2 Others
    Nairobi (Milimani) HCCS No. 1243 of 2001
  • Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah
    (2016) eKLR
  • Peter Mwangi Mbuthia & Another v Samow Edin Osman
    (2014) eKLR
  • Peter Umbuku Muyaka v Henry Sitati Mmbasu
    (2018) eKLR
  • Gedion Mutiso Mutua V Mega Wealth International Limited
    (2012) eKLR
  • Kasturi Limited v Nyeri Wholesalers Limited
    [2014] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.