Baringo United Company Limited v Bina Wholesalers & 2 others (Environment & Land Case E196 of 2021) [2024] KEMC 133 (KLR)
The bottom line
#A Kenyan court ruled that tenants who ignore a valid termination notice become trespassers liable to pay for every month they overstay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants were lawful tenants or trespassers
The Defendants ceased to be tenants when the termination notices took effect on 1st November 2019, as their references were filed out of time; continued occupation amounted to trespass, save that acceptance of rent for September–December 2022 created a monthly periodic tenancy for the 1st and 3rd Defendants during that period.
The termination notices complied with section 4(2) of Cap 301 and the reason for termination fell within section 7(f). The Tribunal's ruling in Tribunal Case No. 173 of 2019 dismissed the Defendants' application to file references out of time, so the notices stood effective. No proof of rent payment was adduced for the period from 1st November 2019 to August 2022. The 2nd Defendant paid nothing after the notice, hence continuous trespass. The 1st and 3rd Defendants' bank payments for September–December 2022 revived a monthly tenancy only for that window.
Whether the Plaintiff was entitled to rent arrears of Kshs. 419,000 against the 2nd Defendant
Claim for rent arrears rejected for want of proof.
Sections 107 and 109 of the Evidence Act placed the burden on the Plaintiff to prove the alleged arrears accrued prior to the termination notices. The Plaintiff merely alleged default without producing evidence or establishing the period over which the arrears accrued. Following Oscar Luvaha Explore Auto Valuers v Babi Investments, where a claim was dismissed for failure to prove arrears, the claim failed.
Whether the Plaintiff was entitled to mesne profits and eviction
Mesne profits awarded against all three Defendants for the trespass periods established, and eviction ordered against the 1st and 2nd Defendants.
Having found unlawful occupation from 1st November 2019, the court held the Plaintiff entitled to compensation for the use of its premises and to quiet possession free from interference by the 1st and 2nd Defendants. The 3rd Defendant, having vacated, was not subject to eviction but remained liable for mesne profits for its trespass period.
Legal principles established
#- It is the filing of a reference before the Business Premises Rent Tribunal that suspends a termination notice; absent a duly lodged reference, a termination notice stands effective and the tenancy is terminated upon lapse of the notice period.
- Continued occupation of premises after a validly terminated controlled tenancy amounts to trespass.
- Acceptance of rent after termination of a lease does not by itself waive the lessor's remedies, though continued acceptance for two months gives rise to a monthly periodic lease.
- A claimant asserting rent arrears bears the evidentiary burden of proving the arrears and their duration.
Court orders
#- 1.Certification that the 1st, 2nd and 3rd Defendants are trespassers on the Plaintiff's suit property, with trespass periods: 1st Defendant (1st November 2019 – August 2022, then from January 2024 until vacant possession); 2nd Defendant (1st November 2019 until vacant possession is granted); 3rd Defendant (1st November 2019 – August 2022)
- 2.Mesne profits awarded plus interest: Kshs. 104,632 per month from 1st November 2019 to August 2022, then from 1st January 2024 until vacant possession, against the 1st Defendant; Kshs. 63,800 per month from 1st November 2019 until vacant possession, against the 2nd Defendant; Kshs. 111,012 per month from 1st November 2019 to August 2022, against the 3rd Defendant
- 3.An order for eviction against the 1st and 2nd Defendants
- 4.Costs awarded to the Plaintiff against the Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court over a landlord-tenant and trespass dispute under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 and the Land Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Baringo United Company Limited v Bina Wholesalers & 2 others (Environment & Land Case E196 of 2021) [2024] KEMC 133 (KLR)", Case Analysis (2024). Nakuru Chief Magistrate's Court Civil Suit (plaint dated 10th November 2021, filed 18th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/133/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.