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ELCDismissedEnvironment & Land Case 1928 of 2007· [2023] KEELC 17871 (KLR)

Kamau v Horeria t/a Horeria & Co & another

Environment and Land Court
25 May 2023
4,021 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed both a tenant's Kshs 4.5 million damages claim and a landlord's rent counterclaim because neither side properly pleaded and proved their case.

What this practically means

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Executive summary

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The plaintiff, a pharmacist, leased shop number 2 on the ground and mezzanine floors of the 2nd defendant's building from January 2001. The written lease expired on 31 March 2006. The plaintiff sought renewal, paid Kshs 90,000/- for April to June 2006 which the 1st defendant received and receipted, but the defendants unilaterally raised rent, proclaimed distress, and on 27 June 2006 locked the premises despite Business Premises Rent Tribunal status quo orders in BPRT No. 315 of 2006. The plaintiff claimed damages for loss of business, clientele and reputation, abandoning special damages at trial. The defendants, who called no witness, counterclaimed for Kshs 470,000/- rent arrears. The court framed five issues. It held that acceptance of rent after expiry, coupled with continued possession, created an implied contract amounting to a valid lease, invoking section 60 of the Land Act. It found the locking-up of the premises unlawful and contrary to the tribunal orders, with no cogent justification offered. However, the plaintiff's damages claim failed because loss of business earnings is special damages requiring specific pleading and strict proof, and no figures or profit evidence were pleaded or produced; parties are bound by their pleadings. The counterclaim also failed for want of evidence, a counterclaim being like a suit requiring proof. Both the suit and counterclaim were dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether a valid lease existed after expiry of the written lease on 31 March 2006

Holding

Yes - acceptance of rent for April to June 2006 and continued possession created an implied contract/valid lease

Reasoning

The court applied an objective approach to contract formation, holding that offer, acceptance and consideration may be inferred from conduct. The Defendants received and receipted Kshs 90,000/- rent after expiry of the written lease, and the Plaintiff remained in possession; under section 60 of the Land Act this culminated in an implied contract creating binding obligations.

p. 6
02

Whether the Plaintiff proved entitlement to damages for loss of business

Holding

No - the claim failed as special damages were neither specifically pleaded nor strictly proved

Reasoning

Loss of business earnings quantifiable at the date of filing suit is special in nature. The re-amended plaint pleaded no particular figures, and no documentary evidence of profits was produced. Parties are bound by their pleadings and a court can only grant reliefs pleaded. The claim for loss of sales therefore failed.

p. 8
03

Whether the Defendants proved their counterclaim for Kshs 470,000 rent arrears

Holding

No - dismissed for want of proof

Reasoning

The Defendants filed a defence and counterclaim but called no witness at trial; their case was closed and their application to reopen was found unmerited. A counterclaim must be proved to the required standard like any suit, and with no evidence led, the claimed rent arrears were not established.

p. 8
04

Whether the Defendants' locking up of the premises was lawful

Holding

No - the court found the locking up unlawful and contrary to BPRT status quo orders, but no damages followed due to pleading failure

Reasoning

The Plaintiff demonstrated that the Defendants closed the premises despite clear Business Premises Rent Tribunal orders providing otherwise, and no cogent explanation was offered. However, since the damages claim failed on pleading and proof grounds, the finding on unlawfulness yielded no relief.

Legal principles established

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  • Acceptance of rent after expiry of a lease for two months while the lessee remains in possession gives rise to a periodic month-to-month lease under section 60 of the Land Act
  • A claim for loss of business/sales arising from breach of contract is special damages which must be specifically pleaded and strictly proved; general damages are not awardable for breach of contract
  • A counterclaim is like a suit and must be proved to the required standard

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The counterclaim by the 1st and 2nd Defendants is dismissed
  3. 3.Each party to bear own costs of the suit

Authorities

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Legislation

  • Land ActSection 60(1) and (2)
  • Evidence ActSections 107(1)(2), 109 and 112

Cases cited (16)

  • Gusii Mwalimu Investment Co. Ltd v Mwalimu Hotel Kisii Ltd
    (1996) eKLR
  • Ripples Limited v Kamau Mucuha
    Nairobi HCCC 4522 of 1992
  • Matarella Limited v Michael Bell & Another
    (2018) eKLR
  • Munover N. Alibhai t/a Diana Galley v South Coast
    (1995) eKLR
  • Rose and Frank Co. v J. R. Crompton & Bros Ltd
    (1923) 2 KB

    Common intention to enter legal obligations, mutually communicated, is required to create a contract

  • William Muthee Muthami v Bank of Baroda
    (2014) eKLR

    Elements of offer, acceptance and consideration must be proved in contract claims

  • Ali Mohammed v Kenya Shell & Co. Ltd
    (2017) eKLR

    Implied contracts and the conduct of the parties

  • Lamb v Oraro
    (1893) 1 CH 218

    Definition of implied contract/promise in law

  • The Aramis
    (1989) 1 Lloyds Rep 213

    Whether a contract should be implied is a question of fact; necessity to give business reality to a transaction

  • Mumbi M'Nabea v David M. Wachira
    [2016] eKLR

    Standard of proof in civil claims is balance of probabilities

  • Maria Ciabaitaru M'mairanyi & Others v Blue Shield Insurance Company Limited
    Civil Appeal No. 101 of 2000 [2005] 1 EA 280

    Evidentiary burden of proof under sections 107 and 109 of the Evidence Act

  • Palace Investments Limited v Geoffrey Kariuki Mwenda & another
    [2015] eKLR

    Balance of probability means a win however narrow; a draw is not enough

  • Miller v Minister of Pensions
    [1947] 2 All ER 372

    Reasonable degree of probability standard, not as high as criminal cases

  • National Social Security Fund Board of Trustees v Sifa International Limited
    (2016) eKLR

    Special damages must be specifically pleaded and strictly proved

  • Macharia & Waiguru v Muranga Municipal Council & Another
    (2014) eKLR

    Special damages must be specifically pleaded and strictly proved

  • Provincial Insurance Co. EA Ltd v Mordekai Mwanga Nandwa
    KSM CACA 179 of 1995

    Special damages must be specifically pleaded; no general damages for breach of contract

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a lease/tenancy dispute concerning land in Nairobi

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, "Kamau v Horeria t/a Horeria & Co & another", Case Analysis (2023). Environment & Land Case 1928 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17871/eng@2023-05-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.