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ELCPartially AllowedNot stated in the excerpt· [2025] KEELC 1031 (KLR)

Salim (Suing as the Administrator of the Estate of the Late Mohamed Salim Mbarak) v Sidik Abdulrehman Abdalla t/a Baitulam House (Environment & Land Case E080 of 2021) [2025] KEELC 1031 (KLR)

Environment and Land Court
4 March 2025
MNMwangi Njoroge
2,462 words in judgment
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The bottom line

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A Lamu hotel tenant lost its lease for unpaid rent, was ordered to vacate, and its Kshs 25 million improvement claim was thrown out for skipping the hearing.

What this practically means

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Executive summary

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The Plaintiff sued over Plot No. Lamu/Block III/160, leased to the Defendant's company by agreement dated 1/7/2004 for 25 years, later varied by agreement dated 11/3/2009. The Plaintiff sought a declaration of breach of the lease and variation agreements, a permanent injunction, vacant possession/eviction, damages and costs, alleging non-payment of rent from January 2021, failure to maintain the premises, unlawful sub-letting, and failure to honour a termination notice dated 18/6/2021. The Defendant filed a defence and counterclaim denying the arrears and counterclaiming Kshs 25,000,000/- for improvements and damages for improper termination, contending that only one month's notice was given where six months was required. When the suit came up for hearing on 31/10/2024 the Defendant was absent and his counterclaim was dismissed for non-attendance. The Plaintiff testified alone, adopting his written statement and producing eight exhibits, leaving his evidence uncontroverted. The court framed three issues: breach, eviction, and costs. Relying on Gichinga Kibutha v Caroline Nduku, the court held that uncontroverted evidence still had to be proved on a balance of probabilities. It found the rent arrears admitted and established breach as to non-payment, but found the sub-letting allegation unproven (the alleged sub-lease was unsigned) and the maintenance allegation unproven (no valuation report). Applying Dormakaba Limited and Robinson v Harman on contractual damages, the court awarded arrears of Kshs 1,000,000/- and general damages, issued the declaration, permanent injunction and an order for vacant possession with eviction in default, with interest and costs to the Plaintiff. The Defendant's counterclaim was dismissed.

Key legal issues

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01

Whether the Defendant breached the lease and variation agreements

Holding

The court found breach only as to non-payment of rent from January 2021, an admission echoed in the defence and the Defendant's advocate's letter; the sub-letting and failure-to-maintain particulars failed for want of probative evidence

Reasoning

The rent clause required payment in advance. The Defendant did not deny arrears, which appeared in his own statement of defence and counterclaim and his advocate's letter of 1/6/2021. The alleged sub-lease was unsigned by both the Defendant and the third party, carrying no probative value, and no official valuation report particularised the state of the premises before and after the agreement.

p. 4
02

What remedies flow from the established breach

Holding

Damages measured by rent for the remainder of the contract period, plus rent arrears, declaration of breach, permanent injunction, and vacant possession/eviction

Reasoning

Having proved breach, damages were an adequate substitute for performance. The rent arrears from January 2021 to judgment totalled Kshs 1,000,000/= at Kshs 20,000/= per month, and the court added general damages of Kshs 300,000/= (later quantified in the final orders as Kshs 500,000/=), with equitable reliefs of declaration, injunction and possession.

p. 5

Legal principles established

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  • Uncontroverted evidence does not automatically entitle a plaintiff to judgment; the plaintiff must still prove the case on a balance of probabilities
  • A claimant for general damages for breach of contract is entitled to at least nominal damages even without proof of loss
  • To claim damages in contract a plaintiff must prove existence of contract, breach, and loss, with a probable causal link

Court orders

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  1. 1.A declaration that the Defendant is in breach of the lease agreement dated 1/7/2004 and the variation of lease agreement dated 11/3/2009
  2. 2.A permanent injunction restraining the Defendant, his agents, servants, employees and/or representatives from interfering with the Plaintiff's quiet possession of Plot No. Lamu/Block III/160
  3. 3.The Defendant to forthwith allow the Plaintiff vacant possession in default of which he shall be evicted from Lamu/Block III/160
  4. 4.Kshs 500,000/= damages for breach of the lease agreement and variation agreement
  5. 5.Kshs 1,000,000/= arrears of rent accrued since January 2021 up to the date of judgment
  6. 6.Costs of the suit borne by the Defendant
  7. 7.Interest at court rates on the sums from date of filing suit and date of taxation respectively
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the lease dispute relating to Plot No. Lamu/Block III/160

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, "Salim (Suing as the Administrator of the Estate of the Late Mohamed Salim Mbarak) v Sidik Abdulrehman Abdalla t/a Baitulam House (Environment & Land Case E080 of 2021) [2025] KEELC 1031 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1031/eng@2025-03-04

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