Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 617 (KLR)

Rachael Wangari t/a City Oil Ltd v Waweru & another (Environment & Land Case 934 of 2015) [2024] KEELC 617 (KLR)

Environment and Land Court
8 February 2024
MMM.D. Mwangi
4,218 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A petrol station operator who lost her premises recovered only KShs 90,000 because she couldn't prove who demolished her property or her losses.

What this practically means

#

Executive summary

#
The Plaintiff alleged she held a 15-year tenancy over part of L.R. No. Kangemi/Dagoretti/1326, on which she operated a petrol station. She claimed the 1st Defendant unlawfully terminated the tenancy and sold the property to the 2nd Defendant, and that on 30th September 2015 the Defendants demolished her petrol station, destroying property and causing losses of Kshs. 61,570,000. She sought declarations, an injunction (later abandoned), special damages, loss of revenue, and general damages. The 1st Defendant denied the lease (claiming he leased to her husband) and that any cause of action arose after the sale; the 2nd Defendant denied involvement in the demolition and challenged the court's jurisdiction, contending the dispute concerned a controlled tenancy for the Business Premises Tribunal. The court found the tenancy was controlled under Cap 301 but retained jurisdiction since the plaintiff sought compensation for unlawful termination, not reinstatement. On liability, the plaintiff conceded in cross-examination that neither defendant evicted her or sent the demolishers; the burden of proof was not discharged, so the demolition and destruction claims failed entirely. Her special damages claim also failed: the valuation report was unverifiable and unreliable, and the business documents were in the name of City Oil Ltd, a separate legal entity that could not sue through her. However, the 1st Defendant's notice giving 1½ months instead of the six months required by clause 9 amounted to breach of contract, entitling her to the liquidated Kshs. 90,000 in lieu of notice with interest from 4th August 2016. General damages for breach of contract were refused. Each party was ordered to bear its own costs.

Key legal issues

#
01

Jurisdiction despite controlled tenancy

Holding

The court had jurisdiction because the claim was for compensation for unlawful termination, not reinstatement of a controlled tenancy

Reasoning

The 2nd Defendant argued the tenancy was controlled under Cap 301, ousting the court's jurisdiction. The court agreed the tenancy was controlled but found the claim was for damages for wrongful termination of a tenancy that no longer existed, falling under Section 13 of the ELC Act and Article 162(2)(b).

p. 6
02

Liability for demolition

Holding

No liability established against either defendant

Reasoning

The plaintiff conceded in cross-examination that neither defendant personally evicted her or that those who demolished acted on their instructions. There was no evidence beyond insinuations; the burden of proof under Section 107 of the Evidence Act was not discharged.

p. 7
03

Proof of special damages

Holding

Special damages not proved

Reasoning

The valuation report was unverifiable because the property had already been destroyed and no records were provided. A loss assessor should have been engaged. Moreover, documents were in the name of City Oil Ltd, which could not sue through the plaintiff.

p. 8
04

Breach of contract

Holding

1st Defendant breached clause 9 and is liable for Kshs. 90,000 in lieu of notice

Reasoning

The lease required six months' notice or payment of Kshs. 90,000 in lieu. The notice gave only 1½ months, breaching clause 9. The liquidated sum was awarded with interest, but general damages were refused per Dharamshi v Karsan.

p. 9

Legal principles established

#
  • A tenancy in writing containing a provision for termination other than for breach of covenant within five years from commencement is a controlled tenancy
  • A limited liability company has a legal existence independent of its members and cannot be sued through them
  • General damages are not awardable for breach of contract in addition to quantified damages

Court orders

#
  1. 1.The Plaintiff's case against the 2nd Defendant fails entirely
  2. 2.Judgment for the Plaintiff against the 1st Defendant only in respect of the claim for Kshs. 90,000 with interest at court rates from 4th August 2016 until payment in full
  3. 3.Each party to bear its own costs

Authorities

#

Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 2(1)(b)(ii)
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 162(2)(b)
  • Evidence ActSection 107
  • Valuation for Rating ActCap 266

Cases cited (3)

  • Salomon vs Solomon & Co. Ltd
    (1897) AC 22
  • Dharamshi v Karsan
    [1974] EA 41
  • Securicor Courier (K) Ltd v Benson David Onyango & another
    [2008] eKLR
Jurisdiction invoked
Section 13 of the Environment and Land Court Act and Article 162(2)(b) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rachael Wangari t/a City Oil Ltd v Waweru & another (Environment & Land Case 934 of 2015) [2024] KEELC 617 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/617/eng@2024-02-08

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