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ELCPartially AllowedELC No. 1000 of 2012 (Consolidated with ELC No. 403 of 2014, formerly CMCC No. 9093 of 2005)· [2024] KEELC 3490 (KLR)

Okoto & another v Wasunna (Sued as the Administrator of the Estate of Edwin Dickson Wasunna - Deceased) (Environment and Land Case Civil Suit 1000 of 2012 & 403 of 2014 (Consolidated)) [2024] KEELC 3490 (KLR)

Environment and Land Court
25 April 2024
11,943 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~48 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered a long-occupying former executive to vacate a Lavington property and pay over Kshs. 13 million in rent arrears and mesne profits.

What this practically means

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Executive summary

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This consolidated judgment of the Environment and Land Court at Kisumu determined two suits over L.R No. 3734/703 Tende Drive, Lavington, Nairobi: ELC No. 1000 of 2012 by Joseph Okoto (1st Plaintiff) seeking eviction, a declaration of trespass and mesne profits against Edwin Dickson Wasunna (the Defendant), and ELC No. 403 of 2014 by Kenya Electricity Generating Company Limited (2nd Plaintiff) claiming rent arrears and eviction. The Defendant, a former Managing Director who occupied the property from 1975, denied the tenancy, asserted a lapsed 1997 offer to purchase and counterclaimed for Kshs. 1,620,600/- spent on a perimeter wall and a refund of Kshs. 438,909.50 paid to the 2nd Plaintiff. The court found the 1st Plaintiff lawfully acquired the property for Kshs. 15,500,000/- with registration on 2nd August 2012; that the Defendant was a tenant of the 2nd Plaintiff at Kshs. 40,000/- per month under a lease dated 1st August 2002, admitted arrears in correspondence and suffered a lawful distress; and that the Defendant held no proprietary interest as the 1997 offer lapsed unaccepted. Judgment was entered for the 1st Plaintiff for possession, a declaration of trespass and mesne profits of Kshs. 8,745,209.40 plus accruing mesne profits, and for the 2nd Plaintiff for rent arrears of Kshs. 4,417,090.49 with interest. Both counter-claims were dismissed with costs. Judgment was delivered on 25th April 2024 by S. Okong'o, Judge.

Key legal issues

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01

Whether the 1st Plaintiff acquired the suit property lawfully

Holding

Yes - the 2nd Plaintiff lawfully sold and transferred the property to the 1st Plaintiff for Kshs. 15,500,000/- and the transfer was duly registered

Reasoning

The court found the property was transferred to and registered in the 2nd Plaintiff's name on 3rd July 2007, the offer to the 1st Plaintiff was made the same day, the purchase price was paid in instalments, the transfer instrument was executed on 6th May 2010 and registered on 2nd August 2012, and a Certificate of Title issued. The 2nd Plaintiff admitted the sale and did not challenge the 1st Plaintiff's title.

p. 16
02

Whether the Defendant was a tenant of the 2nd Plaintiff

Holding

Yes - after his employment ended in May 2002, the Defendant remained in occupation as a tenant under a lease dated 1st August 2002 (mistakenly dated 1st August 2001) at Kshs. 40,000/- per month

Reasoning

The court accepted PW3's unrebutted evidence, noting the Defendant authorised a Kshs. 200,000/- credit to his 'housing lease account' after executing the lease, wrote numerous letters admitting rent arrears and promising payment, and never disputed the 2nd Plaintiff's title. The 1997 offer from the Kenya Power Retirement Benefits Scheme Trustees lapsed unaccepted.

03

Whether the Defendant had any proprietary interest in the suit property

Holding

No - the Defendant never accepted the 1997 offer to purchase and claimed no ownership in his counter-claims

Reasoning

The Defendant pleaded no claim of ownership; the offer of 13th August 1997 lapsed for want of acceptance and non-payment. His purported improvements were made without written approval and gave him no proprietary interest entitling him to remain in occupation free of charge.

04

Whether the Defendant's counter-claims could succeed

Holding

No - both counter-claims were dismissed

Reasoning

Against the 1st Plaintiff there was no privity, and the purchase was on an 'as is where is' basis. Against the 2nd Plaintiff, the claim for refund of rent paid and damages for wrongful attachment failed because the tenancy and the rent arrears were established, rendering the distress lawful.

p. 18

Legal principles established

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  • Registration of a transfer confers ownership upon the transferee, who is then entitled to possession against a party without proprietary interest
  • An offer to purchase property that lapses unaccepted confers no right of continued occupation

Court orders

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  1. 1.A declaration that the Defendant is a trespasser on the suit property
  2. 2.The Defendant to vacate and hand over possession of the suit property to the 1st Plaintiff within thirty (30) days, in default of which the 1st Plaintiff may apply for warrants of forceful eviction
  3. 3.Kshs. 8,745,209.40 mesne profits as at June 2021 with interest at court rates until payment in full to the 1st Plaintiff
  4. 4.Additional mesne profits at Kshs. 103,422/- per month from July 2021 to 31st December 2021 with interest to the 1st Plaintiff
  5. 5.Additional mesne profits at Kshs. 108,593.10 per month from 1st January 2022, increasing by 5% annually until possession is delivered, to the 1st Plaintiff
  6. 6.Kshs. 4,417,090.49 rent arrears as at 12th August 2012 with interest at court rates until payment in full to the 2nd Plaintiff
  7. 7.Costs of the suit to the 1st and 2nd Plaintiffs
  8. 8.Defendant's counter-claim against the 1st Plaintiff dismissed with costs
  9. 9.Defendant's counter-claim against the 2nd Plaintiff dismissed with costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to ownership, occupation and title to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Okoto & another v Wasunna (Sued as the Administrator of the Estate of Edwin Dickson Wasunna - Deceased) (Environment and Land Case Civil Suit 1000 of 2012 & 403 of 2014 (Consolidated)) [2024] KEELC 3490 (KLR)", Case Analysis (2024). ELC No. 1000 of 2012 (Consolidated with ELC No. 403 of 2014, formerly CMCC No. 9093 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3490/eng@2024-04-25

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