Africasa Real Estate Limited v Scorpio Enterprises Limited
The bottom line
#A Kenyan landlord won Kshs 21.9 million against a tenant who made unauthorised alterations and never paid utilities, largely because the tenant offered no evidence in its defence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the defendant was liable to pay water, electricity, sanitary conservancy and telephone charges under the subleases
- 2.Whether the defendant breached the subleases by making structural alterations without consent, and whether Kshs 20,242,425.00 is payable for restoration
- 3.Whether the uncontroverted plaintiff's evidence proved the claim on a balance of probabilities
Key legal issues
#Effect of failure by the defendant to adduce evidence
The plaintiff's evidence stood unchallenged and uncontroverted and was sufficient to prove the claim on a balance of probabilities
The defendant filed a defence but called no witness. Relying on established authority, the court held that unrebuted evidence leaves the court no option but to infer the facts as true; the defence remained mere statements of fact incapable of displacing the plaintiff's proof of liability.
Liability for utility and conservancy charges under the subleases
The subleases obliged the defendant to pay water, electricity, sanitary conservancy and telephone charges, and the defendant never paid them; the plaintiff's recovery of Kshs 1,604,893.40 was valid
The court examined clause 1(b) of the lease dated 24th November 2014 and a similar clause in the lease dated 31st December 2014, both requiring the defendant to bear these charges. With no contrary evidence, the court found the obligation established and unpaid.
Cost of restoring alterations made without consent
The Kshs 20,242,425.00 restoration cost was not controverted and was recoverable as damages for breach of the covenant against unauthorised alterations
The plaintiff pleaded structural alterations made without written consent and produced a valuer's assessment of restoration costs. The defendant neither cross-examined on this evidence nor disputed the valuation fee, so the claim was proved unchallenged on a balance of probabilities.
Legal principles established
#- Failure to rebut or challenge an opponent's evidence permits the court to act on that uncontroverted evidence
- A party that fails to call evidence leaves its pleadings as mere statements of fact, unsubstantiated
Court orders
#- 1.Judgment entered for the plaintiff against the defendant for the sum of Kenya Shillings 21,912,318.40
- 2.Costs of the suit awarded to the plaintiff
- 3.Interest on the decretal sum and costs at court rates
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 lease/sublease disputes concerning land in Malindi
Relief refused
#Claim for Kshs 65,000 paid to professional valuers
Not expressly included in the final orders, though described as not disputed; judgment was limited to the principal sum, costs and interest
Costs
Costs of the suit awarded to the plaintiff
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.
This court thus finds that the plaintiff has proved its claim on a balance of probabilities and so judgment is hereby entered for the plaintiff against the defendant for: a. The sum of Kenya Shillings 21,912,318.40; b. Costs of the suit; c. Interest on a and b, hereinabove at court rates.
It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since, in so doing, the party fails to substantiate its pleadings.
In the absence of any contrary evidence by the defendant, I am persuaded that the defendant was supposed to pay for water and electricity charges and that he never paid for the same and the plaintiff's claim is valid.
Issues in the judgment
#Judgment references witness statements 'dated 21st January 2020 and 8th May 2019 respectively' - the earlier statement predates the plaint and sequence appears anomalous
Counsel-cited authorities within Trust Bank quotation are attributed without clear separation; Autar Singh Bahra appears inside a block quote rather than independently cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Africasa Real Estate Limited v Scorpio Enterprises Limited", Case Analysis (2026). ELC Case Number 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5530/eng@2026-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.