Mahican Investments Limited v Giupponi Francesco [2013] KEELC 12 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff proved entitlement to re-enter and take possession of the leased chalet
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.
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.
Whether the special damages of Euro 15,875.47 were payable
The court awarded Euro 15,875.47 as due and owing in management fees, with interest from judgment at court rates.
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.
Legal principles established
#- 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
#- 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.The Defendant to pay to the Plaintiff Euro 15,875.47
- 3.The Defendant to pay interest on the decretal sum from the date of judgment until payment in full at court rates
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.