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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 6942 (KLR)

Maalim v Musila (Civil Appeal 31 of 2023) [2024] KEELC 6942 (KLR)

Environment and Land Court
23 October 2024
2,765 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside a Kshs 500,000 eviction damages award, holding a landlord who issues proper notices cannot be blamed when a tenant refuses to leave.

What this practically means

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Executive summary

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The Environment and Land Court at Malindi (E.K. Makori, J) allowed an appeal against the judgment of Hon. J.M. Kituku, SPM, Kilifi, delivered on 14th June 2023, which had declined the Respondent's prayers but awarded him Kshs. 500,000/- as general damages for unlawful constructive eviction. The Respondent had been a tenant of Rosemary Njoki on land that, after protracted litigation culminating in Mombasa ELC No. 141 of 2011, was awarded in part to the Appellant. Notices under Section 152E of the Land Law (Amendment) Act, 2016 dated 17th October 2020 and 3rd April 2019 were issued to the Respondent and other tenants. The other tenants vacated, but the Respondent stayed put and the Appellant fenced the plot on 20th August 2021. The appellate court, applying the Okeno v Republic standard of fresh and exhaustive re-evaluation, framed three issues: whether the trial court's decision was correct, whether the Kshs. 500,000/- award should stand, and costs. It held that no landlord/tenant relationship existed between the parties, that the Respondent was served with the notices (as the trial court itself had found in its ruling of 11th January 2022), and that the Respondent, who had even opened a nearby shop, deliberately refused to vacate. The damages claim was unpleated and unproven, and the Respondent failed to mitigate. The appeal was upheld, the lower court judgment set aside in its entirety, and the Respondent ordered to bear costs in both courts.

Key legal issues

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01

Whether the trial court erred in finding non-compliance with Section 152E of the Land Law (Amendment) Act, 2016

Holding

The trial court erred; notices dated 17th October 2020 and 3rd April 2019 were issued to the Respondent and other tenants, and the trial court itself had earlier found the Respondent was served.

Reasoning

The appellate court reviewed the record and found the notices were issued to the Respondent and fellow tenants. The interlocutory ruling of 11th January 2022 had already found the plaintiff and other tenants were served but only the plaintiff declined to vacate, a finding the Respondent did not rebut by supplementary affidavit.

p. 5
02

Whether a landlord/tenant relationship existed between the Appellant and the Respondent

Holding

No landlord/tenant relationship existed; the Respondent was a tenant of Rosemary Njoki, and nothing on record showed rent was ever paid to the Appellant.

Reasoning

The Respondent's tenancy was with Rosemary Njoki, who had lost the disputed portion to the Appellant after the Msa. ELC No. 141 of 2011 decree. The Appellant issued statutory notices; the other tenants left voluntarily while the Respondent, who had even moved to a nearby shop ('Supa Duka'), deliberately refused to vacate.

p. 5
03

Whether the award of Kshs. 500,000/- as general damages for constructive eviction was justified

Holding

The award could not stand: the damages were never pleaded or proven, and the Respondent failed to mitigate by accessing his shop and removing his belongings.

Reasoning

The plaint did not plead general damages but losses to be assessed upon reopening of the premises, which were in the nature of special damages requiring strict proof. Nothing showed goods were destroyed or missing, and the Respondent had a duty to mitigate which he failed to discharge.

p. 5
04

Whether the fencing of the plot amounted to forceful/constructive eviction

Holding

The fencing was for the Appellant's security and did not amount to constructive eviction; the shop remained accessible to the Respondent.

Reasoning

The Appellant was implementing the decree in Msa. ELC No. 141 of 2011, which had awarded her the portion. The Respondent could enter and leave the shop and cart away his belongings, and he had already opened a new shop nearby.

p. 5

Legal principles established

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  • On a first appeal, the court must re-evaluate the evidence and reach its own conclusions while making allowance for the trial court's advantage of hearing witnesses.
  • A landlord cannot obtain possession extra-judicially; possession orders must be obtained from a competent court or statutory tribunal.
  • Where a party has been served with notices to vacate and deliberately refuses to vacate, an award of damages for constructive eviction is not warranted.

Court orders

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  1. 1.The appeal is upheld and the Lower Court judgment against the Appellant is set aside in its entirety
  2. 2.The Respondent to bear costs of the appeal and of the Lower Court

Authorities

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Legislation

  • Land Law (Amendment) Act, 2016Section 152E

Cases cited (8)

  • Okeno v Republic
    [1972] EA 32
  • Pandya v. R.
    [1957] E.A. 336
  • Shantilal M. Ruwala v. R.
    [1957] E.A. 570
  • Peters v. Sunday Post
    [1958] E.A. 424
  • Munaver N. Alibhai T/A Diani Gallery v South Coast Holdings Limited
    [2020] eKLR
  • Gusii Mwalimu Investment Co. Ltd vs Mwalimu Hotel Kisii Ltd
    [1996] eKLR
  • Ripples Limited vs Kamau Mucuha
    Nairobi HCCC 4522 of 1992
  • CMCC (Msa.) Land Case No. E.006 of 2021
On appeal from
Senior Principal Magistrate's Court, Kilifi
Not stated (arising from CMCC (Msa.) Land Case No. E.006 of 2021 proceedings)
Jurisdiction invoked
First appellate jurisdiction over the Senior Principal Magistrate's Court (Environment and Land Court Act); exact provision not cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maalim v Musila (Civil Appeal 31 of 2023) [2024] KEELC 6942 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6942/eng@2024-10-23

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