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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 7035 (KLR)

Catholic Diocese of Eldoret Registered Trustees v Kimutai & another (Environment & Land Case E014 of 2024) [2024] KEELC 7035 (KLR)

Environment and Land Court
24 October 2024
MMM. N. Mwanyale
2,861 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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What this practically means

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Executive summary

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The Catholic Diocese of Eldoret Registered Trustees sued Bethwel Kimutai and Phyllis Kimutai for rent arrears, loss and damage, eviction, general damages for trespass, mesne profits and a permanent injunction over Nandi/kamobo/2181 following expiry of an 8-year lease dated 25/01/2012 at an annual rent of kshs 1,000,000/=. The Defendants did not enter appearance or file a defence; interlocutory judgment was entered and the suit proceeded by formal proof. The court first confirmed jurisdiction, holding that the tenancy was not a controlled tenancy under Cap 302 because the lease contained no termination provision other than for breach, and the arbitration clause did not apply since the suit was not founded on comprehensive insurable risk. Following Karugi v Kabiya, the court held the plaintiff still had to prove its case on a balance of probabilities despite the undefended status. The unregistered lease was held valid between the parties, following Chon Jeuk Suk Kim and Bachelors Bakery. The court found the plaintiff held an indefeasible title, that the defendants held over after the lease expired on 29/12/2020, and that under Section 60(1) of the Land Act they were liable for the agreed annual rent until vacant possession. Rent arrears of kshs 3,500,000/= and special damages of kshs 1,100,000/= were proved, and general damages for trespass of kshs 500,000/= were awarded. Mesne profits were refused as no specific sum was claimed. The court entered judgment jointly and severally, ordered vacant possession within 30 days with liberty to evict, a permanent restraint, and costs on the lower scale.

Key legal issues

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01

Whether the ELC has jurisdiction despite the existence of the Business Premises Rent Tribunal (Cap 302)

Holding

The Court has jurisdiction because the tenancy was not a controlled tenancy under Cap 302, and the arbitration clause did not apply

Reasoning

The Court examined Section 2 of Cap 302 as interpreted in Khalif Jele Mohamed. The lease was for 8 years with a termination provision only for breach of covenant, so it was not a controlled tenancy capable of ousting the Court's jurisdiction. The arbitration clause in clause 5(b) applied only to fire or comprehensive risk damage, which was not the foundation of the suit.

p. 5
02

Whether the unregistered lease agreement is enforceable

Holding

Yes; the unregistered lease is valid between the parties

Reasoning

Although the lease was not registered as required by law, the Court, following Chon Jeuk Suk Kim & another v E.J Austin and Bachelors Bakery Limited v Wetland Securities Limited, held such an agreement valid between the parties even absent registration. The Defendants were therefore bound by its terms including the annual rent of kshs 1,000,000/=.

p. 6
03

Whether the Plaintiff proved entitlement to rent arrears and accrued rent

Holding

Yes; arrears of kshs 3,500,000/= proved, and rent continues to accrue until vacant possession

Reasoning

Following expiry of the lease on 29/12/2020 the Defendants remained in possession, attracting Section 60(1) of the Land Act, obliging them to pay the agreed annual rent of kshs 1,000,000/= until they give vacant possession. The arrears of kshs 3,500,000/= as pleaded were proved and continue to accrue.

p. 6
04

Whether general damages for trespass and special damages were payable

Holding

General damages of kshs 500,000/= awarded; special damages of kshs 1,100,000/= proved and allowed; mesne profits refused for want of a specific claim

Reasoning

Upon expiry of the termination notice the Defendants became trespassers, justifying general damages assessed at kshs 500,000/= following Kimutai Tunoi Leonard v Samuel Cheboi. Special damages of kshs 1,100,000/= were pleaded and proved by receipt. Mesne profits failed because no specific sum was claimed.

p. 6

Legal principles established

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  • An unregistered lease agreement is nonetheless valid between the parties even in absence of registration
  • A defendant who remains in possession after expiry of a lease is liable to pay the agreed annual rent until vacant possession is given
  • The burden of proof on a plaintiff is not lessened where the suit is undefended and heard by formal proof
  • A tenancy with no termination provision other than for breach of covenant is not a controlled tenancy

Court orders

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  1. 1.Rent arrears of kshs 3,500,000/= as at 30/6/2024
  2. 2.Defendants to pay accrued rent from 01/07/2024 until vacant possession is given
  3. 3.Special damages of kshs 1,100,000/=
  4. 4.Interest on rent arrears and accrued rent at Court rates from date of default till payment in full
  5. 5.General damages for trespass of kshs 500,000/=
  6. 6.Defendants to give vacant possession of Nandi/kamobo/2181 within 30 days from date of judgment, in default the Plaintiff may evict them, their agents and/or servants
  7. 7.Permanent restraint on the Defendants from interfering with the Plaintiff's ownership of the suit property after eviction
  8. 8.Costs of the suit to the Plaintiff on the lower scale
  9. 9.Interest on the special damages, general damages and the reliefs (c)(d)(f) at Court rates from date of judgment till payment in full

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Land ActSection 65(2)(b)(i)
  • Land ActSections 60(1) and 66
  • Land Registration ActSection 26
  • Business Premises Rent Tribunal Act (Cap 302)Section 2(1)(b)(ii)
  • Civil Procedure ActSection 2; Section 27(1)
  • Civil Procedure RulesOrder 21 Rule 13
  • Environment and Land Court ActSection 13(7)(i)
  • Evidence ActSection 107

Cases cited (9)

  • Bhankanji Dayalal Ramji vs Mombasa Calibratan Services Limited & 3 others
    (2018) eKLR
  • Katsun Limited vs Nyeri Wholesalers Limited
    (2014) eKLR
  • Mepukori Pere vs Samuel Gicheru & another
    2021 (eKLR)
  • Kimutai Tunoi Leonard vs Samuel Cheboi
    (2017) eKLR
  • Khalif Jele Mohamed & Another vs Republic and Another
    (2019) eKLR
  • Karugi and others vs Kabiya and 3 others
    (1983) eKLR
  • Chon Jeuk Suk Kim & another vs E.J Austin & 2 others
    (2013) eKLR
  • Bachelors Bakery Limited vs Wetland Securities Limited
  • Peter Mwangi Msuitia vs Samow Edin Osman
    2014 eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, as invoked by the Plaintiff

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, "Catholic Diocese of Eldoret Registered Trustees v Kimutai & another (Environment & Land Case E014 of 2024) [2024] KEELC 7035 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7035/eng@2024-10-24

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