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ELCPartially AllowedELC Case No. 27 of 2014· [2021] KEELC 3771 (KLR)

Regina Gertrude Njogu & another v Gaming International Kenya Limited [2021] KEELC 3771 (KLR)

Environment and Land Court
22 March 2021
KBK. Bor
1,030 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a landlord over KShs 28 million in unpaid rent and utility bills because the tenant offered no evidence to challenge the claim.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of the late James Evans Njogu, sued Gaming International Kenya Limited over a registered 6-year lease dated 20/12/2011 of the ground and mezzanine floors of Odeon Plaza (LR 209/4400 Nairobi) at Kshs. 2,000,000 per month. They claimed that the Defendant breached the lease by terminating it and vacating on 31/10/2013 while in arrears of Kshs. 28,867,986 in rent plus electricity and water bills totalling Kshs. 28,882,134.25, and without restoring alterations to the premises. They sought the arrears, general damages for repudiation, restoration costs, loss of rental income, interest and costs. The Defendant admitted tenancy but counterclaimed, alleging the lessor frustrated the lease by denying it and its sub-tenant, Smothers Limited, access to the ground floor after endorsing a sublease, and prayed for dismissal of the suit with damages for breach and loss of business. The Defendant did not participate in the hearing after its advocates ceased acting; service by registered post was proved. The 2nd Plaintiff testified, producing the lease, the Defendant's letter of 24/06/2013 admitting arrears and proposing a payment plan, and the notice to vacate. Relying on Section 107 of the Evidence Act and North End Trading Company Ltd v City Council of Nairobi, the court held the unchallenged case proved the arrears but that restoration costs and loss of income were not proved. The counterclaim was dismissed with costs, and judgment entered for Kshs. 28,882,134.25 plus costs of the suit.

Key legal issues

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01

Effect of failure to adduce evidence in support of a defence and counterclaim

Holding

The unchallenged plaintiffs' case stood, and the counterclaim, being unproven, was dismissed

Reasoning

The Defendant's advocates ceased acting, the Defendant was served with notice of the hearing through registered post but did not attend. The Plaintiffs testified and produced the lease, the admission of arrears and the notice to vacate. Relying on Section 107 of the Evidence Act and North End Trading Company Ltd v City Council of Nairobi, the court held that a defence with no evidence to support it cannot challenge the plaintiff's case, so the claims in the defence and counterclaim were not proved.

p. 2
02

Liability for rent arrears and utility charges on breach/termination of lease

Holding

The Defendant was liable for Kshs. 28,882,134.25 in rent arrears and unpaid electricity and water bills

Reasoning

The lease dated 20/12/2011 was registered and provided for rent of Kshs. 2,000,000 per month payable quarterly in advance. The Defendant's own letter of 24/06/2013 admitted arrears and proposed a payment schedule, and it gave notice to vacate on 31/10/2013. This documentary evidence was uncontroverted, establishing the arrears claimed. General damages for repudiation, restoration costs and loss of income were not awarded for want of proof.

p. 2

Legal principles established

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  • A defence in respect of which no evidence is adduced cannot be used to challenge the plaintiff's case; an unchallenged plaintiff's case stands

Court orders

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  1. 1.The Defendant's counterclaim dated 28/02/2014 is dismissed with costs to the Plaintiffs
  2. 2.The Plaintiffs are awarded a total of Kshs. 28,882,134.25 being rent arrears, water and electricity bills owed by the Defendant, together with the costs of the suit
  3. 3.Costs of restoration of the Suit Property and loss of income were refused for want of proof

Authorities

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Legislation

  • Evidence ActSection 107

Cases cited (1)

  • North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi
    [2019] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land leases (lease of land reference number 209/4400 Nairobi)

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, "Regina Gertrude Njogu & another v Gaming International Kenya Limited [2021] KEELC 3771 (KLR)", Case Analysis (2021). ELC Case No. 27 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3771/eng@2021-03-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.