Aroko v Ngotho & another
The bottom line
#A Kenyan landlord who accepted rent after a tenant's notice expired effectively agreed to continued occupancy, so the eviction and goods sale were blocked.
What this practically means
#Executive summary
#Key legal issues
#Nature of the tenancy absent a written lease
The tenancy was a month-to-month periodic tenancy under sections 46(1)(b) and (c) of the Registered Land Act, terminable by one month's notice
The possession terms referenced a lease 'to be drawn up by the landlord's advocates' but there was no evidence any lease was in fact drawn. With monthly rent payments, the statutory default of a monthly periodic tenancy applied to both the first and second tenancies.
Effect of accepting rent after notice to vacate
The landlord's agents' acceptance of rent from July 1990 to January 1991 meant the tenant held over under section 52(1) as a month-to-month tenant, and acceptance was consent under section 52(2)
Receipts and the landlord's own rent schedule showed rent was accepted after the notice expired; the landlord did not deny receipt or that it was received on his instructions, so the notice was superseded by continued tenancy.
Entitlement to double rent
Section 14 of the Distress for Rent Act applies only where the tenant has given notice wishing to vacate; the tenant gave no such notice, and Kenya's Act has no double-rent provision for holding over as in the English 1737 Act
The inflated arrears figures in the proclamation were premised on double rent from July 1990. Once double rent was disallowed, arrears fell to about two months, undermining the basis of the distress.
Lawfulness of the distress and adequacy of damages
If the claimed arrears were largely unfounded, the distress was unlawful or excessive, and the court should restrain sale of the goods; damages would be inadequate because a lease is an interest in land amid a housing shortage
The arithmetic showed a maximum of two months' arrears against a claim of Shs 56,000, raising serious triable issues; eviction could leave the tenant without comparable housing, making an injunction appropriate under the Giella test.
Legal principles established
#- In the absence of a lease in writing, the tenancy is a periodic tenancy under section 46(1)(b) of the Registered Land Act, monthly where rent is paid monthly, terminable by one month's notice
- Under section 52(2) of the Registered Land Act, acceptance of rent by the landlord after expiry of a notice to vacate is evidence of consent to continued occupation
- Kenya's Distress for Rent Act contains no provision for double rent for holding over, unlike section 18 of the English Distress for Rent Act 1737
- A right of forfeiture cannot be exercised by peaceable re-entry while the tenant remains in occupation; it must be enforced by action under section 56(2) of the Registered Land Act
Court orders
#- 1.Injunction granted in terms of prayers No 1 and 2 of the tenant's chamber summons filed on 12/2/91, restraining eviction and sale of distrained goods
- 2.Costs of the tenant's application awarded to the tenant
- 3.The landlord's application filed on 14/2/91 for discharge of the ex parte injunction dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; statutory lease provisions under the Registered Land Act (Cap 300) and Distress for Rent Act (Cap 293)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aroko v Ngotho & another", Case Analysis (1991). Civil Case No 689 of 1991. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.