Kungu & another (Suing as the administrations of the Estate of Kungu Kagiri t/a Monte Carlo Club) v English Press Properties Limited & 2 others (Environment & Land Case 110 of 2016) [2024] KEELC 556 (KLR)
The bottom line
#A Kenyan court ruled that a landlord who locks out a protected tenant's estate without a court order or proper notice must pay damages — but tenants must act quickly.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs (administrators of the deceased tenant's estate) had locus standi to sue on the controlled tenancy
They had locus standi; the distress for rent acknowledged the subsistence of the tenancy, and death of the tenant does not terminate a controlled tenancy.
The court relied on section 4(1) of Cap 301 which provides that a controlled tenancy shall not terminate otherwise than in accordance with the Act, and on the common law position that a tenancy vests in the deceased lessee's personal representatives. Since the business was a going concern forming part of the deceased's estate and the landlord itself levied distress for rent, the landlords could not simultaneously deny the tenancy subsisted while distraining under it.
Whether the eviction of the Plaintiffs was unlawful
The attempted eviction was illegal and unlawful: no rent was owed when the goods were proclaimed, no termination notice under section 4(2) of Cap 301 was served, and there was no court order for eviction.
The court found no evidence of service of a termination notice in the prescribed form in accordance with section 4(2) of Cap 301. The proclamation notice was issued before any rent had accrued and goods were carried away four days after proclamation instead of the fourteen days in the notification. DW1 admitted there was no eviction order. Reliance was placed on Caledonia Supermarket and Gusii Mwalimu, which condemned extra-judicial recovery of possession.
Whether the Plaintiffs were entitled to damages for loss of business despite lack of documentary proof
Yes; general damages of Kshs.720,000 being one year's rent at the rate the Plaintiffs paid, plus punitive damages of Kshs.500,000 for the unlawful distress and eviction.
The court applied the equitable principle that there is no wrong without a remedy and the authority in Kimatu Mbuvi that quantification difficulties do not defeat a damages claim. Having carried on business since 1994 and paid rent, the business must have been profitable. Since the tenancy was month-to-month under section 57(4) of the Land Act, compensation was pegged at one year's rent as an interim mitigation, with punitive damages for the unlawful distress.
Whether a mandatory injunction restoring the Plaintiffs to the premises should issue at the final stage
No; it was too late as the premises had passed to a third party and the Plaintiffs had not diligently pursued reinstatement.
The court distinguished Gusii Mwalimu and Locaball, where mandatory injunctions were granted at interlocutory stage. Interim orders of 14th September 2015 restrained the Plaintiffs from evicting the 3rd Defendant and were repeatedly extended, with the Plaintiffs' consent to maintaining the status quo. The Plaintiffs' own witness confirmed they were no longer in possession. Equity aids the diligent.
Legal principles established
#- A controlled tenancy does not terminate on the death of the tenant; it vests in the tenant's legal personal representatives and may only be terminated in accordance with the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.
- Levying distress for rent is an acknowledgement that the tenancy still subsists, conferring locus standi on the tenant's administrators.
- A landlord may not obtain possession extra-judicially; unless the tenant consents to give up possession, the landlord must obtain an order of a competent court or statutory tribunal.
- A court may award an estimated amount for loss of business profits where documents were destroyed, rather than dismissing the claim for lack of documentary proof.
Court orders
#- 1.Judgment entered for the Plaintiffs as against the 1st Defendant
- 2.General damages of Kshs. 720,000 (one year's rent at the rate the Plaintiffs were paying)
- 3.Punitive/exemplary damages of Kshs. 500,000
- 4.Costs of the suit to the Plaintiffs
- 5.Interest on the general and punitive damages at court rates from the date of judgment
- Jurisdiction invoked
- Original civil jurisdiction following transfer of the suit from the High Court, Commercial and Admiralty Division, to the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kungu & another (Suing as the administrations of the Estate of Kungu Kagiri t/a Monte Carlo Club) v English Press Properties Limited & 2 others (Environment & Land Case 110 of 2016) [2024] KEELC 556 (KLR)", Case Analysis (2024). Not stated in the judgment (originally filed in the Commercial and Admiralty Division; plaint dated 9th September 2015; later transferred to the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/556/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.