Martin Ng’ang’a Kanyingi v Belgravia Services (K) Limited [2021] KEELC 240 (KLR)
The bottom line
#A Kenyan tenant who sued his landlord for Kshs 27 million over repairs and eviction lost nearly everything, recovering only his security deposit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff is a lawful tenant or a trespasser in the suit premises.
- 2.Whether the suit premises were in a tenantable state as at the 1st of October 2016 or otherwise.
- 3.Whether the repairs and/or works that were undertaken and/or carried out by the Plaintiff were authorized and approved by the Defendant.
- 4.Whether the Plaintiff is entitled to the Reliefs at the foot of the Plaint.
Key legal issues
#Status of the Plaintiff: lawful tenant or trespasser
The Plaintiff ceased to be a lawful tenant effective 30th November 2019 upon unchallenged termination notices; he is not lawfully in occupation.
The termination notices issued under the lease were received, acknowledged and responded to by the Plaintiff but never challenged or impugned in any proceedings. A termination notice issued in accordance with the contract takes effect unless rescinded by the issuer or challenged in court. Further, the suit property was sold and transferred to John Mahinda Gaita with effect from 26th November 2019, and the Plaintiff holds no lease with the current registered owner.
Tenantable state of the premises at execution of the lease
The premises were in a tenantable state when the lease was executed, as attested by clause 12(k).
The snag-list defects were repaired by the Defendant before execution; the remaining works were modifications the Plaintiff wanted for his own liking. Having executed the lease without reservation after reviewing its terms, the Plaintiff is bound by it and cannot adduce extrinsic evidence to contradict its terms, per the parol evidence rule and Section 97 and 98 of the Evidence Act.
Whether the repairs/works were authorized by the Defendant
The works were unauthorized; clause 10(g) required the landlord's prior written consent and none was proved.
Clause 10(g) of the lease barred alterations without the landlord's prior written consent. The Defendant being a company could only authorize in writing. The burden lay on the Plaintiff under Sections 107 and 108 of the Evidence Act, and no written approval, addendum or amended agreement was availed. The lease violation notice of 21st December 2016 was never withdrawn or challenged.
Entitlement to the reliefs claimed
Only the claim for refund of the security deposit succeeded; the declaration, injunction and the monetary claims failed.
The declaration was made in vacuum since the tenancy was terminated; an injunction against a registered owner would be an absurdity absent special circumstances; the repair claim was undocumented and unauthorized, receipts unstamped and inadmissible, and wages unproved; rents were paid willingly for a tenantable premises. Only the security deposit, refundable upon termination of tenancy, was found legitimate.
Legal principles established
#- A termination notice issued in accordance with the lease takes effect unless rescinded by the issuer or challenged in court.
- Parties are bound by the terms of a contract they have executed, and extrinsic evidence cannot be adduced to contradict, vary or add to its terms.
- A tenant may not effect alterations to leased premises without the landlord's prior written consent.
- A limited liability company can only act or authorize instructions in writing.
- Unstamped instruments chargeable with stamp duty are inadmissible in evidence under Section 19 of the Stamp Duty Act.
- Special damages, having been particularly pleaded, must be specifically proved.
Court orders
#- 1.The Plaintiff's suit vide Plaint dated 19th December 2019 be and is hereby dismissed, save for the aspect touching on refund of the security paid at the commencement of the lease agreement dated 1st October 2016.
- 2.The Defendant be and is hereby ordered to refund the security amount paid to the Defendant, and refund thereof to be made within 60 days from the date hereof.
- 3.The Plaintiff shall vacate the suit premises, namely House Number 4, on L.R. NO. 192/60 and grant vacant possession to the Defendant and/or Defendant's nominee within 90 days from the date hereof.
- 4.In default to vacate and handover vacant possession, the Defendant and/or Defendant's nominee shall be at liberty to apply for eviction orders.
- 5.Cost of the suit be and are hereby awarded to the Defendant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land/tenancy (first-instance suit by plaint)
Relief refused
#Declaration that the Plaintiff is in lawful occupation of House No. 4, L.R. No. 192/60 as a tenant
Tenancy was effectively terminated by unchallenged termination notices; premises also sold and transferred to a third party
Permanent injunction restraining the Defendant from evicting the Plaintiff or interfering with his quiet enjoyment
A defaulting tenant whose tenancy was lawfully terminated cannot obtain a permanent injunction against a registered owner
Kshs. 22,780,715.42 being cost of repairs
Works were unauthorized under clause 10(g); the supporting document was unsigned, from a non-party company, and receipts were unstamped and inadmissible
Kshs. 325,750 being wages
Special damages must be specifically proved; the wages document was a mere sheet of paper without details
Refund of rents paid for 13 months (part of Kshs. 4,500,000)
Premises were tenantable at handover; rents were paid knowingly, lawfully and willingly and are not refundable
Costs
Cost of the suit be and are hereby awarded to the Defendant.
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 Plaintiff herein ceased to be a lawful tenant in the suit premises effectively from the 30th of November 2019, in terms with the termination notice issued on the 22nd day of November 2019
I find and hold that the suit premises, were in a tenantable state, when the Lease Agreement was executed and that much, is attested to by Clause 12k, thereof.
The Plaintiff herein on whom the burden of proof laid, did not avail the requisite approval and in this regard, my answer to whether any approval was given is in the negative.
the various receipts which have been produced are neither accompanied by the ETR receipt nor the revenue stamp. Consequently, the same are legally inadmissible for purposes of proving expenditure.
Special damages having been particularly pleaded, must be specifically proved. However such proof cannot be achieved by throwing a non-authentic document, on the face of the Court.
The Defendant be and is hereby ordered to refund the security amount paid to the Defendant, and refund thereof to be made within 60 days from the date hereof.
Cost of the suit be and are hereby awarded to the Defendant.
Issues in the judgment
#Judgment inconsistently dates the Defendant's lease violation/termination letter as 21st December 2016 in most passages but as 26th December 2016 when discussing issue three
Judgment inconsistently dates the Plaintiff's purchase-attempt purchase price discussions and the third party's surname ('Gaita' vs 'Gita')
List of termination and response letters contains typographical dates (e.g. 'Letter dated 227th August 2019'; '20th August 2019' vs '22nd August 2019' elsewhere)
The claim figures as pleaded vary between the Plaint relief (Kshs. 27,606,510.42) and the judgment's breakdown (22,780,715.42 + 325,750 + 4,500,000), while the parties' evidence refers to wages as inclusive of the 22,780,715.42 figure
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Ng’ang’a Kanyingi v Belgravia Services (K) Limited [2021] KEELC 240 (KLR)", Case Analysis (2021). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/240/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.