J.M Kimani t/a Renco Car Identity v Parliamentary Service Commission (Environment & Land Case 258 of 2016) [2022] KEELC 2843 (KLR)
The bottom line
#A Kenyan court awarded a tenant KShs 2 million because his landlord locked him out without the proper legal notice or a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a controlled tenancy
The plaintiff was a controlled tenant; the defendant is not a government department, as earlier held in the court's ruling of May 22, 2009, and nothing had changed those circumstances
The court adopted its own earlier ruling of May 22, 2009 in which it pronounced that the defendant is not a government department. If the defendant were a government department, the tenancy would be precluded from being a controlled tenancy under cap 301. Since the circumstances leading to that conclusion had not changed, the plaintiff's status as a controlled tenant remained undisturbed.
Whether a valid notice of termination under cap 301 was issued
No valid notice of termination was issued; the letter of May 29, 2008 did not disclose reasons, was not in the prescribed form and was not even signed
Section 4(1), (2), (4) and (5) of cap 301 requires a landlord wishing to terminate a controlled tenancy to give notice on the prescribed form, not taking effect in less than two months, and specifying the grounds of termination. The letter of May 29, 2008 failed these requirements: it did not disclose the reason for termination, was not in the prescribed form and was unsigned. Following Caledonia Supermarket and the Tiwi Beach and Alibhai authorities, the defendant failed to give the requisite notice.
Whether the lock-out was justified
The defendant's locking out of the plaintiff without a court order was illegal, unlawful and tortious, amounting to constructive eviction
A tenancy vests a property right that cannot be deprived arbitrarily. Under Gusii Mwalimu Investment, a landlord must obtain orders from a competent court or tribunal to regain possession unless the tenant consents, and under Ripples Limited a landlord cannot pursue both distress and forfeiture. No court order for possession was obtained; the defendant therefore acted in total disregard of the law by posting police officers to deny the plaintiff access, which constituted constructive eviction.
Whether the plaintiff was entitled to damages
General damages of Kshs. 2,000,000 awarded for unlawful and wrongful eviction; claim for loss of business failed as unpleadable and unproved special damages
The court followed Mattarella Limited v Michael Bell, where Kshs. 2,000,000 was awarded for self-help dispossession, holding that violation of a right and due process invites a remedy to the violated. The plaintiff was satisfied to be entitled to general damages of Kshs. 2,000,000. However, loss of business income, being quantifiable at filing, was special damages requiring specific pleading and strict proof, which was absent, so that head failed.
Whether the counterclaim for rent arrears was awardable
The counterclaim partially succeeded only for the occupation period April 1, 2007 to September 10, 2008; the plaintiff was relieved of rent for the period of unlawful dispossession
Section 77 of the Land Act provides that a lessee unlawfully evicted is immediately relieved of all rent obligations for the evicted part. Since the plaintiff was constructively evicted from September 10, 2008, the landlord cannot claim rent for the dispossession period. The plaintiff was in uninterrupted occupation from April 1, 2007 to September 10, 2008 and must pay for that period; the defendant may apply to court for the exact figure.
Legal principles established
#- A controlled tenancy can only be terminated by a notice in the prescribed form under section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, specifying the grounds for termination
- A landlord may not extra-judicially lock out or re-enter against a tenant; possession must be obtained through a court or statutory tribunal, and illegal self-help eviction is tortious and attracts damages
- A lessee unlawfully evicted from leased premises is immediately relieved of all obligations to pay rent or perform covenants under the lease in respect of the evicted part (section 77, Land Act)
- Loss of business earnings arising from breach is special damages which must be specifically pleaded and strictly proved; no general damages lie for breach of contract
Court orders
#- 1.Judgment for the plaintiff of Kshs. 2,000,000 being general damages for unlawful and wrongful eviction with interest thereon at court rates from the date of judgment till payment in full
- 2.Judgment for the defendant for the unpaid rent only as outstanding arrears of rent for the period April 1, 2007 to September 10, 2008, with interest at court rates from the date of the counter-claim till payment in full, with liberty for the defendant to apply to court for the exact figure
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Original civil jurisdiction over a claim in landlord and tenant / tort; not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J.M Kimani t/a Renco Car Identity v Parliamentary Service Commission (Environment & Land Case 258 of 2016) [2022] KEELC 2843 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2843/eng@2022-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.