Delmonte Kenya Limited v Goshen Gardens Limited & another (Environment and Land Case 1245 of 2015) [2025] KEELC 5256 (KLR)
The bottom line
#A Kenyan court ruled a school occupying land without its own signed lease had no right to stay and must vacate by 10 December 2025.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not a contract of lease exists between the plaintiff and the Defendants
- 2.Whether or not the 2nd Defendant is entitled to remain in occupation under the doctrine of estoppel
- 3.Is the Plaintiff entitled to vacant possession of the suit property 12XX7/2?
- 4.Are mesne profits due and payable?
- 5.Who bears the costs of the suit?
Key legal issues
#Existence of a lease between the plaintiff and the 2nd Defendant
No lease existed between the plaintiff and the 2nd Defendant; the original lease with the 1st Defendant expired by effluxion of time on 2nd September 2021, and the 2nd Defendant occupies only at the plaintiff's consent.
The executed lease of 3rd September 2013 was between plaintiff and 1st Defendant only. No subsequent lease was executed with the 2nd Defendant, who was a stranger to the impugned lease and, under privity of contract, could derive no rights from it. Rents received by the plaintiff were expressly on a without prejudice basis pending mesne profits, and the plaintiff consistently denied consent.
Proprietary estoppel / tenancy by estoppel
The defence of estoppel fails; none of the plaintiff's actions or correspondence constituted a representation that a lease would be executed, and an unfulfilled intention to contract is unenforceable.
The court examined the meetings and correspondence, including the 1st Defendant's advocate's letter of 28/9/2015, and found no confirmation from the plaintiff of any promise. The plaintiff instead warned the 2nd Defendant against trespass and received rents only without prejudice. The court cannot compel parties to translate a mere intention into a lease.
Vacant possession and mesne profits
The plaintiff proved its case on a balance of probabilities and is entitled to vacant possession, but not mesne profits since equivalent monies were paid during the suit.
The plaintiff's title and lease entitlement were undisputed; the 2nd Defendant had no legal basis to remain. Vacant possession was ordered, but mesne profits were refused because the 2nd Defendant paid monthly rents throughout, which the court held were equivalent to mesne profits.
Controlled tenancy under Cap 301
The claim that the tenancy was controlled under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act was untenable; the lease had anyway expired by effluxion of time.
The plaintiff argued, and the court effectively accepted, that no lease or tenancy relationship existed with the 2nd Defendant at all, so no controlled tenancy could arise; the Act does not cover school premises and mutual agreement is absent.
Legal principles established
#- A contract cannot be enforced by or against a third party under the doctrine of privity of contract
- A court of law cannot re-write a contract between parties
- Without a lease or consent, a person in occupation cannot deny the landlord vacant possession; mere intention to lease is unenforceable
Court orders
#- 1.A permanent injunction restraining the 1st and 2nd defendants from transferring possession of the plaintiff's property being a portion of L.R. No. 12XX7/2 to any other third party, with effect from 10th December 2025
- 2.A mandatory injunction compelling the defendants, on 10th December 2025, to vacate the suit property
- 3.The defendants jointly and severally to remove all fixtures, fittings, effects and/or assets from the suit property and make good all damage caused; in default the plaintiff may remove them and recover the costs of removal
- 4.Delivery of vacant possession of the suit property on 10th December 2025 in good and substantial repair; in default, eviction supervised by the Officer Commanding Ngati Police Station
- 5.The 2nd Defendant to surrender vacant possession on 10th December 2025 to allow the school calendar run to the end of the year, continuing to pay monthly rents until then
- 6.Costs of the suit awarded to the Plaintiff; no costs awarded in the counter-claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property L.R. No. 12XX7/2 (not expressly cited in the judgment)
Relief refused
#Mesne profits at prevailing rental market rates
The monies equivalent to mesne profits were already paid by the 2nd Defendant during the pendency of the suit
2nd Defendant's counterclaim: rectification, declarations of constructive trust, proprietary estoppel, controlled tenancy, new lease/assignment and damages
No lease existed between plaintiff and 2nd Defendant; privity barred enforcement of the 1st Defendant's lease by a third party; no facts supported estoppel
1st Defendant's counterclaim against the 2nd Defendant
Found to be without merit
Costs
Costs of the suit awarded to the Plaintiff. No costs awarded in the counter-claim.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There being no lease between Plaintifi and the 2nd Defendant it follows that the 2nd Defendant can only remain in possession of the suit premises with the consent of the plaintifi.
it is this court’s holding that none of the actions of the plaintifi can be construed as mispresenting to the 2nd Defendant that a lease agreement would be executed.
I hold that the Plaintifi has proved its case on a balance of probabilities and is entitled to vacant possession. However, it is not entitled to mesne profits as the monies equivalent to mesne profits has been paid by the 2nd Defendant during the pendency of this suit.
A mandatory injunction be issued to compel the Defendants either by themselves their agents and/or employees or otherwise whomsoever on 10th December, 2025 to vacate the Plaintifi’s property known as LR.No.12XX7/2(the suit property).
To deliver vacant possession of the suit property on 10th December, 2025 to the Plaintifi in good and substantial repair and condition. In default of compliance of this order, the Defendants be evicted from the suit property and the Oficer Commanding Ngati Police Station is directed to supervise the eviction exercise.
Costs of the suit awarded to the Plaintifi. No costs awarded in the counter-claim.
Issues in the judgment
#Contradiction in the description of the termination notice period: the plaintiff pleaded and testified to a 30 days' notice, while the 1st Defendant's evidence and the 2nd Defendant's pleading describe a 15 days' notice
DW3's testimony refers to a letter dated 17/10/2025 asking for a lease, which post-dates the events and the evidence period and appears to be an error for 2015
The suit property is inconsistently referred to as L.R. No. 12XX7/2 and L.R 12XX7/4, including in the 2nd Defendant's rectification prayer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Delmonte Kenya Limited v Goshen Gardens Limited & another (Environment and Land Case 1245 of 2015) [2025] KEELC 5256 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5256/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.