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High CourtPartially Allowed· [2009] KEHC 1350 (KLR)

FRANCIS GITHUKU KABUE v KIMANI CHEGE & another

High Court of Kenya
21 October 2009
ALALI-ARONI
1,892 words in judgment
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The bottom line

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A Kenyan landlord who evicted a tenant without a court order was ordered to pay over Kshs. 600,000, proving self-help eviction is costly.

What this practically means

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Executive summary

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The Plaintiff, who ran a music and electronics shop on L.R. No. 36/11/160, 2nd Avenue Eastleigh, Nairobi, sued the 1st and 2nd Defendants for general and special damages after being evicted on 27th May 1999, mid-way through a five-year lease running to 30th November 2001. The defence asserted non-payment of rent, abandonment and the need for renovations, and relied on the area Chief, who helped break into the shop and remove the stock. The court found the lease subsisting and possession never surrendered; locking the premises and any alleged arrears did not authorise self-help repossession. Applying the Court of Appeal decision in Gusii Mwalimu Investment v Mwalimu Hotel Kisii, the judge held that a court order is mandatory for eviction and that the Chief acted outside his authority. The 2nd Defendant and his agents were found to have unlawfully evicted the Plaintiff and removed his merchandise, with the renovation justification a pretext to re-let the shop at triple the rent. The court awarded general damages of Kshs.400,000/= guided by the Muringu Mureu case, special damages of Kshs.209,500/= (Kshs.119,500/= proved by receipts for stock plus refund of Kshs.90,000/= goodwill), dismissed the Kshs.767,000/= loss-of-business claim for want of proof, and declined reinstatement because a third party had occupied the premises since 1999. Costs and interest from filing were awarded to the Plaintiff. Judgment delivered at Nairobi on 21st October 2009 by Ali-Aroni J.

Key legal issues

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01

Whether the Plaintiff was in occupation at the time of eviction on 27th May 1999

Holding

The lease ran to 30th November 2001 and the Plaintiff had not given up possession; locking the premises did not surrender tenancy

Reasoning

The lease was undisputed and had not expired. Locking the shop did not amount to giving up possession, and neither arrears of rent nor abandonment entitled the landlord to break in and repossess without a court order.

p. 2
02

Whether the eviction was lawful

Holding

The 2nd Defendant and his agents unlawfully evicted the Plaintiff; the area Chief acted outside his authority in overseeing the breaking in

Reasoning

No court order authorised repossession. The renovation claim was a pretext to secure a higher-paying tenant, as the premises were re-let at Kshs.25,000/= against Kshs.5,000/= within a month or two of eviction.

p. 3
03

Quantum of damages

Holding

General damages of Kshs.400,000/= awarded guided by Muringu Mureu; special damages of Kshs.119,500/= proved by receipts plus refund of Kshs.90,000/= goodwill

Reasoning

The court applied the reasoning in Gusii Mwalimu and the Muringu Mureu award as a guide. Special damages were adequately proved by receipts; the defence called none of the persons who removed the stock to dispute the claim.

p. 3
04

Loss of business claim of Kshs.767,000/=

Holding

Dismissed for want of proof

Reasoning

The Plaintiff's books were allegedly taken, but bank statements, previous audited accounts or comparable businesses could have proved the daily earnings claim; none were produced.

p. 3

Legal principles established

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  • A landlord may not evict a tenant or repossess premises without an order of a competent court or statutory tribunal, even where rent is in arrears
  • Distress for rent must follow the legal process; self-help eviction is unlawful

Court orders

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  1. 1.General damages of Kshs.400,000/= to the Plaintiff for unlawful eviction
  2. 2.Special damages of Kshs.209,500/= for stock (Kshs.119,500/=) and refund of goodwill (Kshs.90,000/=)
  3. 3.No award for loss of business
  4. 4.No order reinstating the Plaintiff into possession
  5. 5.Costs of the suit and interest from the date of filing suit to the Plaintiff

Authorities

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Cases cited (2)

  • M/S Gusii Mwalimu Investment Co. Ltd & 2 Others vs. Mwalimu Hotel Kisii Ltd
    C.A. No. 160 of 1995

    Landlord must obtain a court order or statutory tribunal order for possession; extra-judicial re-entry is unlawful

  • Francis Muringu Mureu (T/A Jem Corner Bar) vs. John Muranguri Karuga
    Civil Suit No. 119 of 1998 (Nakuru)

    Quantum guide: Kshs.300,000/= awarded for general and punitive damages for unlawful eviction

Jurisdiction invoked
Original civil jurisdiction of the High Court (further amended plaint claiming general and special damages for unlawful eviction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "FRANCIS GITHUKU KABUE v KIMANI CHEGE & another", Case Analysis (2009). . Source:

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