South Coast Holdings Limited v Alibhai t/a Diani Gallery (Civil Appeal E023 of 2022) [2026] KECA 502 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that landlords who lock out controlled tenants without a statutory notice lose rent claims and may pay heavy damages.
What this practically means
#Executive summary
#Key legal issues
#Whether an actionable wrong was pleaded and proved to justify the award of damages
The pleadings disclosed a cause of action in unlawful eviction and trespass; the Appellant's admissions of locking the premises without court order and demanding rent for periods of non-occupation established the wrong
The Respondent pleaded that the Appellant barricaded, chained and padlocked the premises without notice or court order, disclosing unlawful eviction and trespass, recognized torts. The Appellant's own witness admitted under cross-examination that no court or tribunal order preceded the locking, and that rent was demanded for periods the Respondent was not in possession. The earlier definitive ruling that the tenancy was a controlled tenancy remained unchallenged and binding. Absent statutory notice under Section 4, the locking was unlawful.
Whether the Kshs. 2,000,000 award was general damages for breach of contract
The award was for unlawful eviction, a tort, not breach of contract; general damages are therefore recoverable and the ground fails
While it is trite that general damages are not awardable in breach-of-contract claims (Dharamshi vs Karsan, KTDC vs Sundowner Lodge), the trial judgment expressly grounded the award on a finding of unlawful and wrongful eviction, which is tortious. Appellate courts may interfere with quantum only where wrong principles were applied or the figure is inordinately high or low; no such error was shown.
Whether the Appellant was entitled to the counterclaim sums
No rent was payable for the period of unlawful dispossession, and the service-charge and VAT computations were admitted to be erroneous and unreliable, so the counterclaim sums were unproved
A controlled tenant who was constructively evicted is relieved of rent and service charge for the dispossession period. The Appellant's witness admitted double application of VAT, inaccurate figures, demands covering periods of non-occupation, and conceded the sums needed reconsideration. Evidence disclosing material errors, inconsistencies and unwarranted demands went to the root of the counterclaim and discredited the amounts claimed. Rent was properly awarded only for lawful occupation from January 2016 to April 2018.
The duty of a first appellate court
A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses
Relying on the classic statement in Selle vs Associated Motor Boat Company, the Court restated that it is not bound by the trial judge's findings of fact where the judge failed to take account of particular circumstances or probabilities, or where findings are inconsistent with the evidence generally.
Legal principles established
#- A controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act can only be terminated, or its terms altered to the tenant's detriment, by strict statutory notice under Section 4 of the Act; self-help remedies such as padlocking premises without a court or tribunal order are unlawful and amount to wrongful eviction
- A landlord is not entitled to rent for a period during which a tenant was unlawfully dispossessed of the premises
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the Respondent
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a first appeal from the High Court (Article 164 of the Constitution); the appeal was heard as a first appeal requiring reconsideration of evidence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "South Coast Holdings Limited v Alibhai t/a Diani Gallery (Civil Appeal E023 of 2022) [2026] KECA 502 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/502/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.