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ELCStruck OutEnvironment & Land Case E402 of 2021· [2023] KEELC 16707 (KLR)

New Chota Raha Ltd v Kenya Methodist University

Environment and Land Court of Kenya
29 March 2023
9,761 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff company claimed it was illegally evicted from L.R No. 209/0566 (Kemu Towers) by the defendant university on 9th September 2017 and 20th July 2018, and sought special and general damages for the eviction and for confiscated chattels. The defendant denied eviction, contending the plaintiff's tenancy had terminated after it failed to file a Reference against a notice to terminate tenancy, that the plaintiff vacated following distress for tribunal-awarded costs, and that the suit was time-barred as a tort claim. The court framed four issues. First, it held the Environment and Land Court lacked jurisdiction, since the claim was for compensation for the value of movable chattels rather than anything touching ownership, title or use of land, applying Cooperative Bank v Kang'ethe and the Owners of Motor Vessel 'Lillian S' jurisdiction doctrine. Second, it held that because the tenancy had terminated on 5th December 2012 when the tribunal confirmed no Reference was filed, the plaintiff was a trespasser; illegal eviction was therefore a tort claim subject to the three-year limitation under Section 4(1) of the Limitation of Actions Act, and the suit filed in November 2021 was time-barred. Third, despite the jurisdictional finding, the court held on the evidence that the defendant's admitted breaking into the premises without any court order amounted to illegal eviction. Fourth, it held no special damages could be awarded as none were particularly pleaded or specifically proved, rejecting counsel's plea of genuine mistake. The suit was struck out with costs to the defendant, to be agreed or taxed by the deputy registrar.

Key legal issues

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01

Jurisdiction of the ELC over claims for compensation for confiscated movable chattels

Holding

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

Reasoning

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.

p. 11
02

Whether illegal eviction of a former tenant whose tenancy had terminated sounds in contract or tort, and limitation

Holding

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

Reasoning

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.

p. 15
03

Whether the plaintiff was illegally evicted

Holding

Yes - the defendant broke into the premises and removed the plaintiff without any lawful court order, amounting to illegal eviction

Reasoning

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.

p. 17
04

Entitlement to special and general damages

Holding

No award of special damages could issue because the plaintiff neither particularly pleaded nor specifically proved them

Reasoning

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.

p. 18

Legal principles established

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  • 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

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  1. 1.The plaintiff's suit, mounted before a court without the requisite jurisdiction, is struck out
  2. 2.Costs of the suit awarded to the defendant, to be agreed upon and/or taxed by the deputy registrar

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Limitation of Actions ActSection 4(1)
  • Physical and Land Use Planning ActSection 67
  • Environment and Land Court ActSection 13

Cases cited (19)

  • South C Fruit Shop Ltd versus Housing Finance Company of Kenya Ltd
    (2013)eKLR

    Illegal eviction arising from breach of tenancy agreement is a claim in contract with six-year limitation

  • Antony Talaka Nlegembo versus C R D B Bank PLC & Another
    (Land Case No 1 of 2017) (2020) TZHC 384

    Eviction arising from mortgage transaction is not tort but landlord claim with twelve-year limitation

  • Francis Githuku Kabue versus Kimani Chege & Another
    (2009)eKLR

    Recovery of vacant possession without lawful court order amounts to illegal eviction

  • Gusii Mwalimu Investments Company Ltd & 2 Others versus Mwalimu Hotel Kisii Ltd
    (1996)eKLR

    Landlord must obtain court order for possession; extra-judicial re-entry is unlawful

  • Jelioth Wambui Theuri versus Stanley Omondi & Another
    (2019)eKLR

    Trespass and forceful/wrongful eviction constitute torts

  • Cooperative Bank of Kenya Ltd versus Patrick Kang'ethe & Another
    (2017)eKLR

    ELC jurisdiction over contracts limited to those incidental to use of land; debt collection claims fall within High Court civil jurisdiction

  • Paramount Bank Limited vs. Vaqvi Syed Qamara & another
    [2017] eKLR

    Scope of a specialist court's jurisdiction over claims flowing from the dominant dispute

  • Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd
    1989 KLR 1

    Jurisdiction is everything; without it a court has no power to take one more step

  • Phoenix of E.A. Assurance Company Limited versus Simeon Muruchi Thiga t/a Newspaper Service
    [2019] eKLR

    Proceedings without jurisdiction are a nullity ab initio

  • Samuel K Macharia versus Kenya Commercial Bank Ltd & Others
    (2012)eKLR

    A court's jurisdiction flows from the Constitution or legislation and cannot be expanded by judicial craft

  • Gathoni versus Kenya Cooperative Creameries Ltd
    (1982)eKLR

    Limitation law protects defendants against unreasonable delay in bringing suits

  • John Richard Okuku Oloo versus South Nyanza Sugar Co Ltd
    [2013] eKLR

    Special damages must be specifically pleaded and proved with certainty depending on circumstances

  • Union Bank of Nigeria PLC versus Alhaji Adams Ayabule & another
    (2011) JELR 48225 (SC)

    Special damages must be pleaded with distinct particularity and strictly proved; no awards on conjecture

  • Siree Ltd versus Lake Trukana El Molo Lodges
    (2002)EA 521

    Requirement to plead and prove special damages

  • Maritime & Another versus Anjere
    (1990 to 1994) EA 312

    Requirement to plead and prove special damages

  • Grate Lakes Transport Company Ltd versus Kenya Revenue Authority
    (2009)eKLR

    Requirement to plead and prove special damages

  • Daniel Otieno Migore versus South Nyanza Sugar Company Ltd
    (2018)eKLR

    Requirement to plead and prove special damages

  • Mapis Investment Kenya Ltd versus Kenya Railway Corporation
    Court of Appeal Civil Appeal No. 14 of 2005
  • Njogu & Company Advocates versus National Bank of Kenya Ltd
    (2016)eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.