Rioki Estate Co (1970) Ltd v Kinuthia Njoroge [1977] KECA 12 (KLR)
The bottom line
#A Kenyan court refused to award mesne profits where the lease was void because no land control consent was obtained.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether mesne profits were payable for the respondent's continued occupation after the appellant demanded vacant possession, given the lease was void under section 6(2) of the Land Control Act
- 2.Whether the respondent ceased to hold under the agreement from 1st July 1973 when the appellant refused rent and demanded possession
- 3.Whether mesne profits could flow from the court order granting vacant possession or from wrongful occupation generally
- 4.Whether the trial judge's refusal to award costs to the successful appellant was justified
Key legal issues
#Whether mesne profits are payable for occupation under a void lease
Not on these facts: the appellant accepted rent for months after the transaction became void and both parties were engaged in the illegal transaction, so mesne profits were refused.
The lease was void for all purposes under section 6(2) of the Land Control Act, so there was no tenancy to hold over from. Section 7 obliged the landlord to refund rent paid under the void transaction, and section 22 created a criminal offence for paying, receiving or remaining in possession in furtherance of it. The appellant received rent for about eleven months after the transaction became void and the real complaint was breach of user. Awarding mesne profits would restore what the statute took away.
Scope of mesne profits in Kenyan law
The court accepted that mesne profits under the Kenyan definition may extend to all wrongful occupation, not only holding over after determination of a tenancy, but left the general illegality question open as it was not argued.
Counsel argued, and the court found some merit in, the proposition that mesne profits under section 2 of the Civil Procedure Act cover wrongful occupation generally, unlike the narrower English meaning. The dictum of Duffus JA in Chemelil was noted as obiter. The court declined to decide the general statutory-integrity question because it had not been argued, deciding instead on the particular facts.
Interference with the trial judge's discretion on costs
The refusal of costs stood: the judge gave a valid reason (equal blame for the illegality and the appellant's misconduct in continuing to receive rent) and the appellate court would not examine its sufficiency.
The proviso to section 27(1) of the Civil Procedure Act permits costs not to follow the event for good reason. The appellant succeeded only on vacant possession, failed on mesne profits, and both parties were equally responsible for the failure to obtain consent. Where the reason given does not amount to good cause it would be different, but that was not shown here.
Legal principles established
#- An agreement rendered void by section 6(2) of the Land Control Act is void for all purposes from its inception, so a party cannot have held under it during any part of its purported currency.
- A party who entered into and continued a void land transaction, accepting rent under it, cannot recover mesne profits from the other party for occupation pursuant to that transaction.
- An appellate court will not examine the sufficiency of a trial judge's reasons for exercising his discretion on costs, provided the reason amounts to good cause.
Court orders
#- 1.Appeal dismissed with costs
- 2.Trial judge's order refusing mesne profits affirmed
- 3.Trial judge's order that there be no order as to costs in the High Court affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Lead judgment dismissing the appeal on both mesne profits and costs.
In the circumstances I would dismiss the appeal with costs, and as the other members of the court agree it is so ordered.p. 4
Wrote the judgment
Concurring judgment: the appellant, having acted in concert in an illegal transaction and received rent under it, could not recover mesne profits; no basis to interfere with the costs discretion.
I agree with the judgment delivered by Wambuzi P and I will only add a few words of my own.p. 4
Wrote the judgment
Short concurring judgment agreeing the appeal should be dismissed with costs and endorsing the trial judge's costs discretion.
I entirely agree with the judgment of Wambuzi P that this appeal should be dismissed with costs.p. 5
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction over the High Court decision (provision not stated in the judgment)
Relief refused
#Mesne profits from 1st July 1973 until delivery of vacant possession
The lease was void for all purposes for want of land control consent; allowing mesne profits would return to the appellant by another route what section 7 of the Land Control Act deprived him of, and the appellant had participated in and benefited from the illegal transaction.
Costs of the suit in the High Court
Both parties were equally to blame for failing to obtain land control consent; the trial judge gave a valid reason and the appellate court would not examine the sufficiency of it.
Costs
Appeal dismissed with costs; the appellant was to bear the costs of the appeal, and no order as to costs in the High Court stood.
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.
The wording in section 6(2) of the Land Control Act is that such an agreement is “void for all purposes”.
I think that there is some merit in this argument, particularly having regard to the definition of “mesne profits” in section 2 of the Civil Procedure Act.
Quite clearly the reference to mesne profits was made obiter as the position referred to did not arise in that case and the matter was not argued.
In such circumstances can the appellant be allowed to continue to take advantage of his own wrong to recover rent under the guise of mesne profits from the respondent? I do not think so.
the trial judge gave his reason for refusing costs to the appellant and I do not think it is open to this Court to examine the sufficiency of the reasons given.
In the circumstances I would dismiss the appeal with costs, and as the other members of the court agree it is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethics and Anti Corruption Commission v Kosachey & 4 others (Environment and Land Case 135 of 2021) [2026] KEELC 1622 (KLR)[2026] KEELC 1622 (KLR)17 Mar 2026followed
Cite this brief
#Cite this brief
Caselaw, "Rioki Estate Co (1970) Ltd v Kinuthia Njoroge [1977] KECA 12 (KLR)", Case Analysis (1977). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1977/12/eng@1977-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.