Gigiri Mart Limited v ATC Kenya Operations Limited (Environment and Land Case E008 of 2024) [2026] KEELC 1384 (KLR)
The bottom line
#A Kenyan landowner failed to evict a telecom tenant because it never proved the tenant breached the lease or that force majeure validly ended it.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant breached clause 5.1 of the lease by failing to pay rent
The defendant was not in breach; the plaintiff failed to bring its registration as the new owner to the defendant's attention in time, and the defendant promptly acted to resolve outstanding rent
The lease was originally with Telkom Kenya. The sale agreement was between Jambo Credit and Telkom, who nominated the plaintiff, registered only on 10th December 2021, without notice to the defendant. The email trail from March 2023 shows the defendant requesting the lease, title and banking details and paying rent once verified, albeit less withholding tax and escalation. The delay and confusion over payment were attributable to the plaintiff's failure to notify.
Whether the lease stood terminated under clause 12.2 (force majeure) following the Water Resources Authority letter dated 18th November, 2021
No force majeure event was proved; the letter was addressed to a third party, not the defendant, and was never brought to the defendant's attention
Clause 12.2 requires a force majeure circumstance beyond a party's control rendering performance impossible, expressly excluding inability to pay rent. The WRA letter was addressed to In One Consultancy Limited regarding a site visit; the defendant was not informed of the visit or findings and never saw the letter. The court found the letter was used by the plaintiff as an avenue to relocate the mast, having earlier expressed a desire to do so, especially since NEMA had in 2017 found the property's environmental reports satisfactory.
Whether the plaintiff proved its claim for eviction, injunction and damages
The plaintiff failed to prove its case on a balance of probabilities; the plaint was dismissed
With no breach of clause 5.1 and no basis for invoking clause 12.2, the termination notice dated 6th December 2022 was unjustified and the defendant was not a trespasser. The defendant remained entitled to quiet possession under the valid lease running to 21st January 2029. The plaintiff's constitutional claims (Articles 27 and 40) necessarily failed as no unlawful occupation was established.
Whether the defendant's counterclaim was merited and competent
The counterclaim succeeded; a permanent injunction was issued restraining the plaintiff from interfering with the defendant's lawful occupation, use and quiet possession of the suit property
The defendant held a valid lease for ten years from 21st January 2019, granting exclusive, quiet and peaceful use. No valid termination having occurred, the defendant was entitled to enforcement of that right. However, its claim for damages for trespass was not pursued among the prayers and therefore could not be awarded.
Legal principles established
#- A court of law cannot re-write a contract between the parties; parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved
- The doctrine of force majeure excuses contractual performance only for events beyond the parties' control not foreseen at the time of contracting, and its interpretation depends on the wording and events delineated by the parties in their contract
Court orders
#- 1.The plaint dated 8th January, 2024 is dismissed with costs to the defendant
- 2.The defendant's counterclaim dated 26th January, 2024 is allowed, and a permanent injunction is issued restraining the plaintiff from interfering with the defendant's lawful occupation, use and quiet possession of the suit property
- 3.The defendant (plaintiff in the counterclaim) is awarded the costs of the counterclaim
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land and a lease over LR No. 12814
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gigiri Mart Limited v ATC Kenya Operations Limited (Environment and Land Case E008 of 2024) [2026] KEELC 1384 (KLR)", Case Analysis (2026). Not stated in the judgment (plaint dated 8th January, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1384/eng@2026-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.