Oloo v African Independent Pentecostal Church of Africa (AIPCA) Makande & another (Civil Case E199 of 2021) [2026] KEMC 479 (KLR)
The bottom line
#A Mombasa court ruled that evicting a tenant without written notice is unlawful, even if the landlord claims the tenant agreed to leave.
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 tenancy between the parties was a controlled tenancy.
- 2.Whether the Plaintiff proved unlawful eviction.
- 3.Whether the Plaintiff voluntarily surrendered possession.
- 4.Whether the Plaintiff proved her entitlement to damages.
- 5.Whether the objection on jurisdiction is merited.
- 6.What orders should issue.
Key legal issues
#Whether the tenancy was a controlled tenancy
It was a controlled tenancy under Cap. 301.
Both parties agreed there was no written tenancy agreement. Section 2 of Cap. 301 defines a controlled tenancy to include a tenancy of a shop not reduced into writing. The tenancy was therefore governed by the Act, attracting its statutory protections including the notice requirements of Section 4.
Whether the Plaintiff proved unlawful eviction
Yes; the Defendants failed to demonstrate lawful recovery of possession.
The Defendants admitted taking possession without issuing the statutory notice under Section 4 of Cap. 301 and without a Tribunal order, relying entirely on alleged voluntary surrender. That surrender, being oral, lacked documentary or independent corroboration, so it was not proved on a balance of probabilities. Unlawful dispossession was therefore established.
Whether the Plaintiff voluntarily surrendered possession
No; the Defendants failed to discharge the evidential burden.
The alleged agreement was oral, with no written agreement, minutes, acknowledgement or independent witness. The Plaintiff's immediate protest, demand and prompt filing of suit were inconsistent with voluntary surrender. Oral agreements are enforceable but require clear, cogent and convincing evidence when relied upon to defeat an eviction claim.
Whether the Court had jurisdiction
Yes; the objection on jurisdiction was not merited.
Though controlled tenancy disputes ordinarily fall to the Tribunal, jurisdiction is assessed against the reliefs sought. The Plaintiff sought damages for completed dispossession, not assessment of rent or determination of a tenancy notice. The Defendants also did not raise a preliminary objection, having fully participated in the trial.
Whether the Plaintiff proved entitlement to damages
Yes, to general damages of Kshs. 150,000.
Special damages were neither pleaded nor proved and could not be awarded. General damages were appropriate given the unlawful eviction, the seven-year occupation, the statutory protection of the controlled tenancy, the interruption of business, offset by the Plaintiff's rent arrears and Covid-19 difficulties, and absence of proved specific loss.
Legal principles established
#- A tenancy of a shop not reduced into writing is a controlled tenancy under Cap. 301.
- A landlord need not obtain a Tribunal order where a tenant voluntarily surrenders possession, but the voluntary surrender must be proved.
- An oral agreement of surrender relied upon to defeat an unlawful eviction claim must be clear, cogent and convincing.
- A claim for damages for wrongful eviction is not within the exclusive jurisdiction of the Business Premises Rent Tribunal; jurisdiction is assessed in the context of the reliefs sought.
Court orders
#- 1.A declaration that the Plaintiff was unlawfully dispossessed of the suit premises.
- 2.General damages of Kshs. 150,000 awarded for the unlawful eviction.
- 3.Interest on the award at court rates from the date of judgment until payment in full.
- 4.Costs of the suit to the Plaintiff.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court; jurisdiction over the damages claim upheld notwithstanding the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 tribunal jurisdiction
Relief refused
#Special damages
Special damages were neither pleaded nor proved.
General damages of Kshs. 1,000,000 as sought by the Plaintiff
Court awarded a lower quantum of Kshs. 150,000, taking into account the Plaintiff's rent arrears, Covid-19 financial difficulties and lack of proved specific loss.
Costs
The Plaintiff shall have the costs of the suit.
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.
Accordingly, judgment is entered for the Plaintiff against the Defendants jointly and severally in the following terms: i. A declaration is hereby issued that the Plaintiff was unlawfully dispossessed of the suit premises.
The Plaintiff is awarded general damages in the sum of Kshs. 150,000 for the unlawful eviction.
The award of general damages shall attract interest at court rates from the date of this judgment until payment in full.
The Plaintiff shall have the costs of the suit.
In the absence of documentary evidence or independent corroboration, I am not satisfied that the alleged voluntary surrender has been established on a balance of probabilities.
jurisdiction must always be considered in the context of the reliefs sought.
Issues in the judgment
#The hearing dates recorded precede the delivery date of judgment, and the defence hearing date of 22nd April 2026 falls only months before the 30th July 2026 delivery; the pleading records dates of hearing in 2026 although the plaint is dated 2021 - internally consistent but notable for the unusually long pendency.
The names of the parties are not set out in the judgment text, which refers to them only as Plaintiff, 1st Defendant and 2nd Defendant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oloo v African Independent Pentecostal Church of Africa (AIPCA) Makande & another (Civil Case E199 of 2021) [2026] KEMC 479 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/479/eng@2026-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.