Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedPlaint dated 5th August 2010, filed 26th August 2010 (Malindi)· [2013] KEELC 9 (KLR)

Mahican Investments Limited v Tempesta Franca Gianna [2013] KEELC 9 (KLR)

High Court of Kenya
20 December 2013
902 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court let a villa owner reclaim a leased chalet and recover over Euro 15,000 in unpaid fees because the tenant never responded.

What this practically means

#

Executive summary

#
The Plaintiff, proprietor of Karibuni Villas on Land Parcels 654 and 657, Mambrui, Malindi, sued by plaint dated 5th August 2010 seeking possession of Chalet No. 32 occupied by the Defendant under a lease, together with accrued management fees of Euro 15,875.47 and costs. Service was effected abroad under Order 5 Rules 27 and 29(a) of the Civil Procedure Code, but the Defendant neither entered appearance nor filed a defence, and the suit proceeded to formal proof on 5th November 2013. At the hearing, the court allowed oral amendments under Section 100 of the Civil Procedure Act correcting a date in paragraph 3 of the Plaint and the special damages figure. PW1, a director of the Plaintiff, testified that the Plaintiff purchased the villas in February 2001 from Caluwa Limited, that the Defendant's unit was sold for Kshs.200,000, and that management fees of Kshs.400,000 per annum fell due under clause 1u of the Lease. Clause 3(a) permitted the Plaintiff to serve a breach notice and re-enter where payments remained unpaid for 30 days. A demand letter of 24th July 2007 went unanswered, and the Plaintiff re-entered the abandoned premises on 18th October 2007; a 2008 valuation placed the apartment at Kshs.650,000. Holding that the Plaintiff had proved its case on a balance of probability, the court ordered the Plaintiff to take possession, awarded Euro 15,875.47 with interest at court rates from the date of judgment, and granted costs to the Plaintiff.

Key legal issues

#
01

Forfeiture/re-entry for non-payment under the Lease

Holding

The Plaintiff, as purchaser of the reversion from the original Lessor, was entitled under clauses 1u and 3(a) of the Lease to serve a breach notice and re-enter upon the Lessee's failure to pay rent and management fees for 30 days

Reasoning

Clause 3(a) entitled the Plaintiff to serve written notice specifying any breach where rent or payments under clause 1u remained unpaid for 30 days, or where obligations were unperformed, and to re-enter and terminate the lease if the Lessee failed to comply. A demand letter of 24th July 2007 went unanswered, and the premises stood abandoned, entitling the Plaintiff to possession.

p. 2
02

Quantum of special damages

Holding

The special damages claim was proved by documentary evidence and, following amendment under Section 100 of the Civil Procedure Act, assessed at Euro 15,875.47

Reasoning

PW1 produced a tabulated schedule of arrears (exhibit 2c) showing the amount due at Euro 15,875.47, which was duly particularised after the court allowed an oral amendment pursuant to Section 100 of the Civil Procedure Act. The Defendant having filed no defence, the figure was unchallenged and the court awarded it with interest at court rates from the date of judgment.

p. 2

Legal principles established

#
  • In an undefended suit, uncontroverted evidence proving the contractual right on a balance of probability suffices for judgment

Court orders

#
  1. 1.The Plaintiff to take possession of the house and premises known as Chalet No. 32 Karibuni, on Land Portion Number 654 and 657, Karibuni Villas, Mambrui Village within Malindi District
  2. 2.The Defendant to pay to the Plaintiff Euro 15,875.47
  3. 3.The Defendant to pay interest on the decretal sum from the date of judgment until payment in full at court rates
  4. 4.The Defendant to pay to the Plaintiff the costs of this suit
Jurisdiction invoked
Original civil jurisdiction under the Civil Procedure Act (suit by plaint; service abroad under Order 5 Rules 27 and 29(a) of the Civil Procedure Rules)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mahican Investments Limited v Tempesta Franca Gianna [2013] KEELC 9 (KLR)", Case Analysis (2013). Plaint dated 5th August 2010, filed 26th August 2010 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/9/eng@2013-12-20

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