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ELCAllowedNot stated in judgment (Plaint dated 5th August 2010, filed 26th August 2010)· [2013] KEELC 12 (KLR)

Mahican Investments Limited v Giupponi Francesco [2013] KEELC 12 (KLR)

High Court of Kenya
20 December 2013
914 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave a villa owner back their property and unpaid fees after the tenant ignored the lease and never defended the case.

What this practically means

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Executive summary

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The Plaintiff, proprietor of Karibuni Villas on Land Portions 654 and 657 at Mambrui, Malindi, sued by plaint dated 5th August 2010 seeking possession of Chalet No. 178B Karibuni leased to the Defendant by a lease executed on 16th November 1998 for Kshs.200,000. The Defendant was served abroad under Order 5 Rules 27 and 29(a) of the Civil Procedure Code but 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 the lease date to 16th November 1998 and the special damages figure to Euro 15,875.47. PW1, a director of the Plaintiff, testified that management fees of Kshs.400,000 per annum were payable in respect of the Defendant's villa; a demand letter of 24th July 2007 for Euro 6,220.53 went unanswered; the Plaintiff re-entered the abandoned and uninhabitable premises on 18th October 2007; and a 2008 valuation put the apartment at Kshs.650,000. Clause 3(a) of the lease permitted re-entry and termination after 30 days' unpaid dues and unremedied breach. Holding that the Plaintiff had proved its case on a balance of probability in the absence of controverting evidence, the court entered judgment for possession of Chalet No. 178B, payment of Euro 15,875.47 with interest from judgment at court rates, and costs of the suit.

Key legal issues

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01

Whether the Plaintiff proved entitlement to re-enter and take possession of the leased chalet

Holding

The court held that the lease entitled the Plaintiff to re-enter upon unpaid rent/management fees and unperformed obligations after notice, and that the Defendant abandoned the premises.

Reasoning

The lease under clause 1u allowed the Plaintiff, as purchaser of the reversion from the initial Lessor, to perform management and maintenance agreements over the common parts. Clause 3(a) entitled 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 on 18th October 2007, the premises being uninhabitable and abandoned. With no defence or controverting evidence, the claim was proved.

p. 2
02

Whether the special damages of Euro 15,875.47 were payable

Holding

The court awarded Euro 15,875.47 as due and owing in management fees, with interest from judgment at court rates.

Reasoning

PW1 produced a schedule tabulating the arrears (exhibit 2a) showing Euro 15,875.47 due under the lease, whose fees were Kshs.400,000 per annum subject to annual variation. The oral amendment of the special damages figure was allowed under Section 100 of the Civil Procedure Act. In the absence of any contrary evidence from the Defendant, the tabulated amount was accepted as proved.

p. 2

Legal principles established

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  • Where a suit proceeds undefended and the plaintiff's uncontroverted evidence establishes the contractual terms and the breach, judgment may be entered on a balance of probability.

Court orders

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  1. 1.The Plaintiff to take possession of the house and premises known as Chalet No. 178B 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); not expressly stated in judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mahican Investments Limited v Giupponi Francesco [2013] KEELC 12 (KLR)", Case Analysis (2013). Not stated in judgment (Plaint dated 5th August 2010, filed 26th August 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/12/eng@2013-12-20

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