Kenya Commercial Bank of Kenya Limited & another (Suing as Executors of the Estate of the Late Prof. Simon Ominde) v Godfrey Ngatia Njoroge t/a Karen Auto Bazaar (Environment and Land Case 2099 of 2007) [2024] KEELC 603 (KLR)
The bottom line
#A Karen landlord won rent arrears, monthly occupation payments, and eviction orders because a tenant who stays after a lease ends still owes rent.
What this practically means
#Executive summary
#Key legal issues
#Whether the letter of offer dated 24th November 2004 constituted a valid and binding lease/agreement between the parties
The executed letter of offer constituted a valid contract; courts cannot rewrite contracts and the parties' conduct showed intention to be bound
Although the formal lease agreement was never drafted despite the Defendant paying Kshs. 30,000 legal fees, clause 17 of the letter of offer provided that the lease would contain the clauses in the letter and that acceptance shall be in writing. Following the Court of Appeal in Pius Kimaiyo Langat v Co-operative Bank, the court held parties are bound by their contract terms. The parties' conduct showed their intention to execute the agreement as it was.
Whether the Defendant, still in occupation after expiry of the six-year term, is liable to pay rent/occupation charges despite contesting the validity of the termination notice
Yes; since the Defendant remained in occupation, the validity of the termination notice and the change of user question were immaterial, and his obligations continued under Section 60 of the Land Act
The court found as an undisputed fact that the Defendant remained in occupation of the premises well beyond the six-year term expiring 1st December 2010. Section 60 of the Land Act provides that a lessee who remains in possession without consent continues to bear all lease obligations. The court reasoned the Defendant's proper course, if aggrieved, was to relinquish possession and sue, not to remain in occupation while withholding rent.
Whether mesne profits should be awarded at the claimed market rate of Kshs. 150,000 per month
No; mesne profits must be pleaded and proved, and in the absence of proof of the market value the court assessed them at the rent payable under the letter of offer, Kshs. 55,000 per month from 1st December 2010
Relying on Chief Land Registrar v Nathan Tirop Koech, the court held a claim for mesne profits is akin to special damages and must be pleaded and proved. Since there was no proof of how the claimed Kshs. 150,000 market value was arrived at, the court fell back on the only evidence on record: the rent payable under the letter of offer, adopting Kshs. 55,000 per month from 1st December 2010 until payment in full.
Whether the Defendant's counterclaim for Kshs. 12,131,080 for goods carried away during distress for rent should be allowed
No; the distress for rent was sanctioned by the court and the Defendant had been defaulting, so the counterclaim was dismissed with costs
The court found it was on record that the Defendant had been defaulting in payment of rent and the distress for rent was clearly sanctioned by court. The Plaintiffs' evidence, including PW1's testimony and the inventory, put the value of levied goods at Kshs. 6,300 and not the Kshs. 12 million claimed. The Defendant did not discharge his burden of proving the claimed loss.
Legal principles established
#- Where a lessee remains in possession after termination or expiry of a lease, all obligations of the lessee under the lease continue until he ceases to be in possession
- Courts cannot rewrite contracts between parties; parties are bound by the terms of their contracts absent coercion, fraud or undue influence
- A claim for mesne profits is akin to special damages and must be pleaded and proved
- An agreement for lease creating a right to obtain another document does not require registration to be enforceable between the parties
Court orders
#- 1.The Defendant is ordered to pay the Plaintiffs Kshs. 3,840,850 owed as of 1st December 2010 with interest at court rate from the date of judgment until payment in full
- 2.The Plaintiffs are awarded mesne profits of Kshs. 55,000/= per month from 1st December 2010 until payment in full together with interest at court rate from the date of judgment until payment in full
- 3.The Plaintiffs are ordered to refund the Defendant the Kshs. 30,000 paid as legal fees for the lease agreement
- 4.The Defendant is ordered to give vacant possession of the suit premises within 90 days of the judgment, failing which the Plaintiffs have orders to evict the Defendant at his own cost
- 5.Costs of the suit to the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over a tenancy dispute concerning land (LR No. 13400 Karen), the plaint having been transferred from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank of Kenya Limited & another (Suing as Executors of the Estate of the Late Prof. Simon Ominde) v Godfrey Ngatia Njoroge t/a Karen Auto Bazaar (Environment and Land Case 2099 of 2007) [2024] KEELC 603 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/603/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.