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ELCDismissedNot stated in the judgment provided· [2025] KEELC 4617 (KLR)

Kithome & another v Haile & another (Land Case E194 of 2024) [2025] KEELC 4617 (KLR)

Environment and Land Court
20 June 2025
6,104 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out both a tenant's and a landlord's claims because each broke the lease, and neither proved their case.

What this practically means

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Executive summary

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The plaintiffs entered into a tenancy agreement dated 16th October, 2023 with the 1st defendant over premises on LR. No. 209/3746, Starehe Sub County, at a monthly rent of KES 350,000 with a one-month rent-free fit-out period. They alleged they were denied access to the ground floor, constructively and illegally evicted, that the distress for rent and notice of forfeiture were unlawful, that the deposit of KES 700,000 was obtained by false pretences, and claimed refunds, damages for loss of profits, personal belongings, hired goods, renovations and general damages. The defendants denied the claims, justified the distress for rent under the Distress for Rent Act pursuant to a magistrates' court order, and counterclaimed for arrears of KES 1,750,000, special damages, auctioneer fees and indemnity, having set off the deposit against arrears and forfeited the tenancy. At trial, PW1 admitted non-payment of rent and gaps in her proof of loss; DW1 admitted denying the plaintiffs access to the ground floor and sending them away, but denied locking the premises. The court held that both parties were in fundamental breach: the plaintiffs failed to pay rent, while the 1st defendant failed to serve the seven days' notice required under clause 7(b) before re-entry, rendering the forfeiture of no value. Neither party proved its case on a balance of probabilities. The amended plaint and the counterclaim were both dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the forfeiture of the tenancy was lawful

Holding

The forfeiture was of no value because the 1st defendant failed to serve the seven days' notice required under clause 7(b) of the tenancy agreement before re-entry

Reasoning

Clause 7(b) of the tenancy agreement required the landlord, upon rent being unpaid for seven days, to serve a written notice specifying the non-payment and requiring remedy within seven days before re-entry. The court found no such notice was served, so the forfeiture could not stand. However, the plaintiffs were also in fundamental breach by failing to pay rent, and neither side proved entitlement to relief.

p. 11
02

Whether either party proved its case to the required standard

Holding

Neither the plaintiffs nor the defendants proved their respective claims on a balance of probabilities, warranting dismissal of both the suit and the counterclaim

Reasoning

The court held that the plaintiffs contributed to the breach by not paying rent, and the 1st defendant breached the agreement by failing to follow the contractual notice procedure and by denying access to the ground floor. With fault on both sides and no persuasive proof by either party, no relief was available to either side on a balance of probabilities.

p. 11

Legal principles established

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  • A landlord seeking to forfeit a tenancy for non-payment of rent must comply with the contractual notice procedure before re-entry; forfeiture without the required notice is of no value
  • A tenant cannot justify withholding rent on the basis of alleged breach by the landlord; both parties are to blame where each is in breach

Court orders

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  1. 1.The amended plaint dated 4th June, 2024 is dismissed
  2. 2.The counterclaim dated 2nd July, 2024 is dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Land ActSection 75
  • Land ActSection 77(1)
  • Land ActSection 152F
  • Distress for Rent ActSection 3
  • Distress for Rent ActSection 4(1)
  • Distress for Rent ActSection 16

Cases cited (20)

  • Teresia Irungu v Jackton Ocharo & 2 others
    [2013] eKLR
  • Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd
    Civil Appeal No. 160 of 1995
  • Shish Vendors & 3 others v Officer Commanding Police Station-Kwale & another; Postal Corporation of Ken & another (Interested Parties)
    (Environment & Land Miscellaneous Case E001 of 2024)[2024] KEELC 1192 (KLR)
  • Boniface Ngure Ndungu v Gathu Holdings Limited & another
    [2021] eKLR
  • Godfrey Kamau Kimani v Ruth Wambura & 4 others
    [2020] eKLR
  • Abdulrazak Khafan & Another v Supersonic Travel & Tours Ltd & Another
    [2005] eKLR
  • Wambui v Frann Investment
    (Environment & Land Case 207 of 2019) [2023] KEELC 21781 (KLR)
  • Al-Riaz International Limited v Ganjoni Properties Limited & another
    (Civil Suit 24 of 2018) [2024] KEHC 14497 (KLR)
  • Peter Nthenge v Daniel Itumo & Another
    HCCC No. 1242 of 1974 Nairobi
  • Royal Gardens Hospital v Ebrahim Omenyi Amwere & Another
    Civil Suit Number 10/2018
  • C.Y.O Owayo v George Hannington Zephania Aduda T/A Aduda Auctioneers & Another
    [2007] KEHC 1390 (KLR)
  • Mocha Hotel Limited v Kwanza Estates Limited
    (Environment & Land Case 14 of 2022)[2023] KEELC 18407(KLR)
  • Njoki v Pussy
    (Environment and Land Appeal E006 of 2022) [2023] KEELC 945 (KLR)
  • Nyoro v Karinstreap Investment Limited
    (Environment & Land Case E100 of 2020) [2023] KEELC 16911(KLR)
  • Wambua v Kenya Railways Corporation
    [2022] KEELC 4752 (KLR)
  • David Bagine v Martin Bundi
    [1997] eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR)
  • Spinners and Spinners Limited v Kimilili Wholesalers Limited; Jayantilal Uniforms Kenya Limited (Objector)
    (Civil Suit 7 of 2020)[2024] KEHC 12935(KLR)
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] eKLR
  • Hydro Water Well (K) Limited v Sechere 2 others (Sued in their representative capacity as the officers of Chae Kenya Society)
    (Civil Suit E212 of 2019) 2021 KEHC 22 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over use and occupation of land)

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, "Kithome & another v Haile & another (Land Case E194 of 2024) [2025] KEELC 4617 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4617/eng@2025-06-20

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