New Chota Raha Ltd v Kenya Methodist University
The bottom line
#A company evicted without a court order still lost its case because it sued in the wrong Kenyan court and waited too long to file.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over claims for compensation for confiscated movable chattels
The ELC lacks jurisdiction to adjudicate a claim for compensation for the value of movable chattels, which is distinct from ownership of or title to land
Article 162(2)(b) confines the ELC to disputes relating to the environment and the use and occupation of, and title to, land. The plaintiff claimed only the value of movable items carted away during the eviction, not title to land. Even a contractual claim over the property would fall outside the court's jurisdiction, following Cooperative Bank of Kenya Ltd v Patrick Kang'ethe. The proper forum was the Chief Magistrate's Court subject to pecuniary jurisdiction.
Whether illegal eviction of a former tenant whose tenancy had terminated sounds in contract or tort, and limitation
Where the tenancy had terminated and the occupant was a trespasser, illegal eviction is a tort claim subject to the three-year limitation period; the suit was time-barred
The plaintiff failed to file a Reference challenging the notice to terminate tenancy dated 3rd August 2012, and the tribunal confirmed on 5th December 2012 that the notice was unchallenged. The tenancy therefore stood terminated and the plaintiff became a trespasser. The eviction of 20th July 2018 thus did not breach any subsisting contract; the claim was in tort, and the three-year limitation period had lapsed by the time of filing in November 2021.
Whether the plaintiff was illegally evicted
Yes - the defendant broke into the premises and removed the plaintiff without any lawful court order, amounting to illegal eviction
DW1 admitted under cross-examination that the ELC never granted an eviction order, that the tribunal order was for recovery of costs only, that no auctioneer was instructed, and that distress was levied by blocking the plaintiff's access. In the absence of a lawful court order, the defendant could not retake possession; the admitted breaking in constituted illegal eviction, consistent with Gusii Mwalimu Investment v Mwalimu Hotel Kisii.
Entitlement to special and general damages
No award of special damages could issue because the plaintiff neither particularly pleaded nor specifically proved them
Claims at the foot of the plaint were in the nature of special damages, which must be specifically pleaded and strictly proved. The plaintiff pleaded damages 'to be particularized' without particulars or proof. Counsel's plea of genuine mistake was rejected; counsel had latitude to apply to amend the plaint but failed to exercise due diligence. Following John Richard Okuku Oloo v South Nyanza Sugar Co Ltd, no award could be made.
Legal principles established
#- A landlord must obtain an order of a competent court or statutory tribunal to obtain possession unless the tenant consents to give up possession
- Jurisdiction is everything; a court bereft of jurisdiction must down its tools at the earliest opportunity
- Special damages must be particularly pleaded and specifically proved
Court orders
#- 1.The plaintiff's suit, mounted before a court without the requisite jurisdiction, is struck out
- 2.Costs of the suit awarded to the defendant, to be agreed upon and/or taxed by the deputy registrar
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "New Chota Raha Ltd v Kenya Methodist University", Case Analysis (2023). Environment & Land Case E402 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16707/eng@2023-03-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.