Njoga v Njenga (Environment & Land Case 607 of 2017) [2022] KEELC 78 (KLR)
The bottom line
#A Kenyan court ruled that paying rent and goodwill to a previous tenant without the landlord's written consent makes you a trespasser, not a tenant.
What this practically means
#Executive summary
#Key legal issues
#Whether a tenancy relationship existed between the Plaintiff and the Defendant over shop No. 3
No tenancy relationship existed; there was no lease agreement between the parties and the Defendant admitted as much
The Defendant took over shop No. 3 from the previous tenant Joseph Wahome, paying him goodwill of Kshs.350,000, but never obtained the landlord's written consent as required by the lease, which prohibited subletting or sale without consent. She never received or executed the offered six-year lease and did not confirm acceptance within seven days. Rent was paid in the name of the former tenant and later only under Tribunal compulsion. Her own admission that no lease agreement existed negated a tenancy relationship.
Whether the court lacked jurisdiction on grounds of subjudice and the existence of a controlled tenancy under Cap 301
The court had jurisdiction; the pending BPRT reference did not bar the suit and the tenancy was not a controlled tenancy
The BPRT Case No. 163 of 2017 could not bar the suit since, once no tenancy relationship existed, the subjudice defence fell away. The alleged controlled tenancy depended on an arrangement to which the landlord was not shown to have been a party; the six-year renewal offer, which was never accepted or reduced into an executed lease, took the matter outside the five-year controlled tenancy definition under Section 2 of Cap 301.
Whether the Plaintiff was entitled to vacant possession, mesne profits and damages for trespass
Vacant possession and mesne profits were awarded; damages for trespass were declined
The notice to vacate was proper and the Plaintiff, having proved he required the premises for his own use, was entitled to possession. The Defendant became a trespasser because she entered without the landlord's consent. Mesne profits were pleaded and computed at the previous tenant's rent of Kshs.16,000 per month from February 2017, totaling Kshs.761,500, subject to deduction of any rent paid under the Tribunal orders. Damages for trespass were refused because some rent had been paid.
Legal principles established
#- Where a tenant takes over premises without the landlord's written consent, the occupier becomes a trespasser as against the landlord
- Payment of rent under compulsion of a Tribunal order does not regularise an occupier's stay or create a tenancy
Court orders
#- 1.The Defendant to vacate shop No 3 on LR No 209/1354 Park Road Ngara within twenty one (21) days from the date of judgment; in default the Plaintiff may use lawful means to evict her
- 2.Mesne profits of Kshs.761,500/- less any rent already paid
- 3.Costs of the suit and interest
- Jurisdiction invoked
- Original civil jurisdiction (claim for vacant possession, mesne profits and damages for trespass); court rejected the objection that jurisdiction lay with the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoga v Njenga (Environment & Land Case 607 of 2017) [2022] KEELC 78 (KLR)", Case Analysis (2022). Environment & Land Case 607 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/78/eng@2022-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.