Githaiga & another (Suing as Legal Representative of the Estate of the Late James Githaiga Kuria) v Karanja (Environment & Land Case E059 of 2021) [2023] KEELC 599 (KLR)
The bottom line
#A Kenyan court ruled that an expired lease cannot be enforced without a written, signed renewal, ordering the tenant's estate to vacate and pay KES 3.36 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the lease dated 30th June 2015 was renewed
The lease lapsed and expired in September 2020 and was never renewed or extended; there is no subsisting lease between the parties.
Both PW1 and DW1 confirmed negotiations for renewal commenced after expiry but the deceased died before formalization. PW1 admitted under cross-examination that there was no written renewal and that the draft lease (exhibit P4) was never executed, and under re-examination that the lease was not extended. Counsel's submissions asserting renewal contradicted the evidence of the Plaintiffs' own witness and could not substitute for evidence.
Whether the Plaintiffs' suit is tenable under Section 3(3) of the Law of Contract Act
The suit is not legally tenable as it is not anchored on a written, signed and attested agreement as required by Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act.
The claim concerns disposition of an interest in land (leasehold interests and ownership of structures). The law requires any such contract to be in writing, signed by all parties and attested by a witness. Since the alleged renewal was oral and the draft lease was never executed, no compliant written contract exists upon which the Plaintiffs' claim can be maintained.
Whether the Plaintiffs are entitled to the reliefs sought in the Plaint
None of the reliefs is tenable; the Plaintiffs failed to discharge the burden of proof on a balance of probabilities.
The declaratory reliefs fail because the lease was never renewed. The claim to the buildings fails because permanent structures attached to land form part of the land owned by the registered proprietor. The injunction fails because it would negate the registered owner's title under Sections 24 and 25 of the Land Registration Act without lawful justification.
Whether the Defendant is entitled to the reliefs in the Counter-claim
The counterclaim is proved in part: vacant possession/eviction, permanent injunction and mesne profits of Kes.3,360,000/= are granted; general damages for trespass and accounts are refused.
As registered owner and there being no subsisting lease, the Defendant is entitled to vacant possession and an injunction. Mesne profits are assessed at the agreed interim rent of Kes.280,000/= per month for the 12 months April 2021 to March 2022, when rents stopped and the court's escrow order took effect. Damages for trespass would duplicate mesne profits, and accounts are duplicative of the mesne profits award and the escrow order.
Legal principles established
#- Submissions cannot take the place of evidence; cases are determined on pleadings and evidence tendered.
- No suit lies on a contract for disposition of an interest in land unless the contract is in writing, signed by all parties and attested (Section 3(3) Law of Contract Act as read with Section 38(1) Land Act).
- A tenant cannot impose or force himself on a landlord; upon expiry of a lease the tenant must give vacant possession.
- Mesne profits are measured by reasonable rent and assessed down to the date possession is given.
- A party cannot recover both mesne profits and general damages for trespass; only one can be granted.
- A permanent building attached to land forms part and parcel of the land and belongs with the ownership of the land.
Court orders
#- 1.Plaintiffs' suit dismissed with costs to the Defendant.
- 2.Plaintiffs ordered to vacate and hand over vacant possession of L.R Nos 209/18279 and 209/18280 within 90 days from the date of judgment.
- 3.In default of vacating, the Defendant at liberty to evict the Plaintiffs, their agents, servants and/or employees from the suit properties.
- 4.Permanent injunction granted restraining the Plaintiffs from entering upon, re-entering or otherwise interfering with the Defendant's rights over the suit properties.
- 5.Plaintiffs to pay Mesne Profits assessed and certified at Kes.3,360,000/=.
- 6.Mesne Profits to attract interest at court rates (14%) from the date of Judgment.
- 7.Monies deposited in the Joint Interests Earning account pursuant to the Ruling of 28th March 2022 to be paid out to the Defendant or his authorized agent/advocates.
- 8.Claim for General Damages for trespass dismissed.
- 9.Claim for Accounts and payment of all proceeds derived from the suit properties since 1st December 2020 declined as duplicitous.
- 10.Any order not expressly granted declined.
- 11.Defendant awarded costs of the counterclaim.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (disposition of interests in land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githaiga & another (Suing as Legal Representative of the Estate of the Late James Githaiga Kuria) v Karanja (Environment & Land Case E059 of 2021) [2023] KEELC 599 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/599/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.