Solomon Kipkoech Kemei & another v Mohamud Mohamed Mohamud & another [2022] KEELC 907 (KLR)
The bottom line
#A Kenyan landlord won forfeiture of two leases after the tenant stopped paying rent and filed a defence but offered no evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant breached the lease agreements of 11th September 2001 and 24th January 2002
Yes - by defaulting in payment of rent as and when it fell due, and by sub-leasing the properties without the head lessors' consent (the second account settled out of court).
The lease agreements required payment of two years' rent in advance and provided for forfeiture if rent remained unpaid for a calendar month or covenants unperformed. The Plaintiffs served demand and forfeiture notices in writing complying with clause 8 and Section 75 of the Land Act. The 1st Defendant paid arrears of Ksh 795,000 by consent in September 2017 but defaulted again from October 2017, and the 2nd Plaintiff received nothing from June 2018. The defence filed was a bare denial unsupported by any evidence.
Whether the Plaintiffs proved their case on a balance of probabilities
Yes - the claim being undefended and the evidence uncontroverted, the Plaintiffs proved their case to the required standard.
The 1st Defendant entered appearance and filed a defence denying the Plaint, but tendered no evidence at trial; the defence case was closed without testimony. Relying on Mugunga General Stores and Continental Butchery, the court held that a mere denial without reasons is insufficient and that judgment may be entered where the defence is a sham. The unchallenged testimony and documentary exhibits (lease agreements, certified registers, consent) established breach and entitlement to forfeiture, eviction and damages for unpaid rent.
Jurisdiction of the ELC over landlord-tenant non-payment of rent disputes
The dispute between landlord and tenant over use and occupation of land falls within the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act.
The relationship between the parties was held to be landlord and tenant arising from registered leases of 40 years over the two parcels. Non-payment of rent is a matter relating to the use and occupation of land, a subject over which Article 162(2)(b) of the Constitution donates jurisdiction to the Environment and Land Court, operationalised by Section 13 of the Environment and Land Court Act.
Legal principles established
#- A mere denial is not a sufficient defence; a defendant must give some reason why the claim fails
- A court cannot rewrite a contract between parties; parties are bound by its terms absent coercion, fraud or undue influence
- Uncontroverted evidence, where a defendant fails to testify, is taken as unchallenged proof of the material facts
Court orders
#- 1.Declared that the lease agreements dated 11th September 2001 and 24th January 2002 respecting LR No. Kericho/Kapsoit/1832 and Kericho/Kapsoit/2071 are terminated and/or forfeited, the 1st Defendant having breached the material conditions and warranties thereof
- 2.The 1st Defendant, his agents, assignees and servants to vacate both suit premises within 30 days; in default the Plaintiffs at liberty to evict, with the Officer Commanding Kapsoit Police Station ensuring law and order during the eviction
- 3.Prayer (ii) of the Plaint (cancellation of encumbrance entries) denied
- 4.General damages awarded in the sum of the unpaid rent due for the period of default together with interest at commercial rates from date of filing until payment in full
- 5.Plaintiffs awarded costs and interests of the suit at court rates on a lower scale since the suit was undefended
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Solomon Kipkoech Kemei & another v Mohamud Mohamed Mohamud & another [2022] KEELC 907 (KLR)", Case Analysis (2022). ELC No. 60 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/907/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.