Wambui v Frann Investment
The bottom line
#A Mombasa court ordered a landlord to pay a tenant over Kshs. 62 million for locking him out of leased premises without a court order.
What this practically means
#Executive summary
#Key legal issues
#Validity of the lease agreement
The lease dated 31st December 2011 was valid, in writing, signed by the parties and enforceable, satisfying Section 3(3) of the Law of Contract Act
The court applied Section 3(3) of the Law of Contract Act and Section 38 of the Land Act, finding the lease in writing, signed and attested, containing parties' names, property description and terms. The existence of the valid agreement was undisputed and therefore enforceable by the parties.
Whether the Defendant breached the lease by constructive eviction
The Defendant breached the lease by locking up the premises and restricting the Plaintiff's access when he was not in rent arrears, amounting to unlawful constructive eviction
The court found the Plaintiff had met rent obligations until 2016 and DW-1 admitted the Plaintiff had overpaid rent. Locking the premises without a court order or termination/distress notices was unlawful. The court relied on authorities condemning extra-judicial repossession by landlords.
Whether the Plaintiff was in breach as pleaded in the Counter-Claim
The Plaintiff was not in breach; no termination or distress notice was ever issued and the Defendant could not claim rent for the period of unlawful dispossession
The court held that rent is only due while enjoyment of the premises persists; upon unlawful eviction under Section 77 of the Land Act the lessee is relieved of rent obligations. The Counter-Claim based on rent for the dispossession period from December 2016 was therefore not awardable.
Removal of the caveat
The Plaintiff was justified in lodging the caveat while the registered lease subsisted, but having lost possession he should remove it upon payment of the damages
The court found the caveat was lodged to preserve the registered lease whose period had not expired, so it was justified. However, circumstances changed: the Plaintiff is no longer in possession and is being compensated, so the caveat should be lifted once the Defendant pays the damages awarded.
Quantum of damages
General damages awarded as pleaded by the Plaintiff: Kshs. 24,600,000 for derogation from grant, Kshs. 24,600,000 for constructive eviction and Kshs. 12,847,350 for goods detained, totalling Kshs. 62,047,350
The court adopted the Plaintiff's submissions quantifying damages by reference to the rent for the unexpired five-year term of the lease and the value of renovations proved by PW-2, holding that a breach of the law ought to attract a remedy to the violated party.
Legal principles established
#- A lessee unlawfully evicted from leased premises is immediately relieved of all obligations to pay rent under the lease for the period of dispossession
- A landlord cannot take possession extra-judicially; possession must be obtained through a court order unless the tenant consents
- Damages in contract are intended to place the claimant in the position he would have been in had the contract been performed
Court orders
#- 1.Judgment entered in favour of the Plaintiff against the Defendant in its entirety save for Prayer No. 1 of the Plaint (permanent injunction), with costs
- 2.The Defendant's Amended Counter-Claim dated 5th February, 2020 partially dismissed with costs to the Plaintiff
- 3.General damages for derogation from grant awarded at Kshs. 24,600,000
- 4.Damages for unlawful constructive eviction awarded at Kshs. 24,600,000
- 5.Reimbursement of the value of goods detained awarded at Kshs. 12,847,350
- 6.Total judgment amount of Kshs. 62,047,350 as at 23rd May, 2023
- 7.Prayer 1 of the Plaint (permanent injunction) not awarded as the tenancy agreement has already been terminated
- 8.Order that the Plaintiff quit, vacate and hand over forthwith the demised premises to the Defendant, and in default an order of eviction to issue
- 9.Order directing the Plaintiff to remove/lift the Caveat on the Defendant's title upon the Defendant effecting payment of the damages, and in default the Land Registrar to remove it at the Plaintiff's cost
- 10.Plaintiff awarded costs of the suit and the Amended Counter-Claim with interest at court rates
- Jurisdiction invoked
- Environment and Land Court jurisdiction over landlord-tenant/lease disputes (Article 162(2)(b) ELC mandate); cause of action in Mombasa
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambui v Frann Investment", Case Analysis (2023). Environment and Land Case 207 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21781/eng@2023-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.