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Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 60 of 2014

Solomon Kipkoech Kemei & another v Mohamud Mohamed Mohamud & another [2022] KEELC 907 (KLR)

Environment and Land Court
10 March 2022
3,860 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan landlord won forfeiture of two leases after the tenant stopped paying rent and filed a defence but offered no evidence.

What this practically means

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Executive summary

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The two Plaintiffs were registered proprietors of parcels LR No. Kericho/Kapsoit/1832 and Kericho/Kapsoit/2071, which they leased to the 1st Defendant for 40-year terms by agreements dated 11th September 2001 and 24th January 2002. They sued for breach: non-payment of rent and unlawful sub-lease and charging of the titles to the National Oil Corporation (the 2nd Defendant) without consent. The claim against the 2nd Defendant was settled out of court and it exited the suit by consent recorded on 13th May 2019. The 1st Defendant entered appearance and filed a defence in September 2015 denying the claim, but tendered no evidence at trial; the defence case was closed on 9th November 2021 without testimony, and only the Plaintiffs filed submissions. By a recorded consent of September 2017 the 1st Defendant paid the 1st Plaintiff arrears of Ksh 795,000, but defaulted again from October 2017, and the 2nd Plaintiff received nothing from June 2018. The court found the landlord-tenant dispute fell within its jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act. Applying Mugunga General Stores, Continental Butchery and National Bank Kenya v Pipeplastic, it held a bare denial unsupported by evidence is insufficient and that parties are bound by their contract. The court declared both leases terminated and/or forfeited, ordered the 1st Defendant to vacate within 30 days failing which eviction may ensue, awarded general damages equivalent to unpaid rent with commercial-rate interest, and costs at a lower scale. Prayer (ii) - cancellation of encumbrance entries - was denied for want of evidence and non-joinder of the third party affected.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was a breach of contract by the 1st Defendant of the lease agreements of 11th September 2001 and 24th January 2002
  2. 2.Whether the Plaintiffs have proved their case on a balance of probabilities to warrant granting the reliefs sought

Key legal issues

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01

Whether the 1st Defendant breached the lease agreements of 11th September 2001 and 24th January 2002

Holding

Yes - by defaulting in payment of rent as and when it fell due, and by sub-leasing the properties without the head lessors' consent (the second account settled out of court).

Reasoning

The lease agreements required payment of two years' rent in advance and provided for forfeiture if rent remained unpaid for a calendar month or covenants unperformed. The Plaintiffs served demand and forfeiture notices in writing complying with clause 8 and Section 75 of the Land Act. The 1st Defendant paid arrears of Ksh 795,000 by consent in September 2017 but defaulted again from October 2017, and the 2nd Plaintiff received nothing from June 2018. The defence filed was a bare denial unsupported by any evidence.

p. 4
02

Whether the Plaintiffs proved their case on a balance of probabilities

Holding

Yes - the claim being undefended and the evidence uncontroverted, the Plaintiffs proved their case to the required standard.

Reasoning

The 1st Defendant entered appearance and filed a defence denying the Plaint, but tendered no evidence at trial; the defence case was closed without testimony. Relying on Mugunga General Stores and Continental Butchery, the court held that a mere denial without reasons is insufficient and that judgment may be entered where the defence is a sham. The unchallenged testimony and documentary exhibits (lease agreements, certified registers, consent) established breach and entitlement to forfeiture, eviction and damages for unpaid rent.

p. 5
03

Jurisdiction of the ELC over landlord-tenant non-payment of rent disputes

Holding

The dispute between landlord and tenant over use and occupation of land falls within the ELC's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act.

Reasoning

The relationship between the parties was held to be landlord and tenant arising from registered leases of 40 years over the two parcels. Non-payment of rent is a matter relating to the use and occupation of land, a subject over which Article 162(2)(b) of the Constitution donates jurisdiction to the Environment and Land Court, operationalised by Section 13 of the Environment and Land Court Act.

p. 4

Legal principles established

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  • A mere denial is not a sufficient defence; a defendant must give some reason why the claim fails
  • A court cannot rewrite a contract between parties; parties are bound by its terms absent coercion, fraud or undue influence
  • Uncontroverted evidence, where a defendant fails to testify, is taken as unchallenged proof of the material facts

Court orders

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  1. 1.Declared that the lease agreements dated 11th September 2001 and 24th January 2002 respecting LR No. Kericho/Kapsoit/1832 and Kericho/Kapsoit/2071 are terminated and/or forfeited, the 1st Defendant having breached the material conditions and warranties thereof
  2. 2.The 1st Defendant, his agents, assignees and servants to vacate both suit premises within 30 days; in default the Plaintiffs at liberty to evict, with the Officer Commanding Kapsoit Police Station ensuring law and order during the eviction
  3. 3.Prayer (ii) of the Plaint (cancellation of encumbrance entries) denied
  4. 4.General damages awarded in the sum of the unpaid rent due for the period of default together with interest at commercial rates from date of filing until payment in full
  5. 5.Plaintiffs awarded costs and interests of the suit at court rates on a lower scale since the suit was undefended

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Relief refused

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Prayer (ii) of the amended Plaint - cancellation of entries No. 2 and 3 in the encumbrance section of the registers for Kericho/Kapsoit/2071 and Kericho/Kapsoit/1832

No evidence was led on the prayer and it involved a third party who was not party to the proceedings

p. 5

Costs

The Plaintiffs shall have costs and interests of this suit at court rates, at a lower scale since the suit was undefended.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is declared that the lease agreements dated 11 th September 2001 and 24th January 2002 respecting the lease properties LR No. Kericho/Kapsoit/1832 and Kericho/Kapsoit/2071 respectively are herein declared terminated and/or forfeited the 1 st Defendant having breached the material conditions and warranties thereof.
p. 5Forfeiture and termination of leases for breach
The 1st Defendant, his agents, assignees and servants shall vacate both the suit premises within 30 days from today. In default, the Plaintiffs shall be at liberty to evict them.
p. 5Eviction order
In terms of prayer (iv) I find that the Plaintiffs are entitled to general damages of the unpaid rent due for the period there has been default together with interest at commercial rates from date of filling of this suit till payment in full.
p. 5Damages for unpaid rent
First of all, a mere denial is not sufficient defence in this type of case. There must be some reason why the Defendant does not owe the money.
p. 4Effect of a bare denial in an undefended suit
a Court of law cannot rewrite a contract between the parties and that the parties are bound by the terms of their contract unless they can prove that coercion, fraud or undue influence was used to procure the contract
p. 4Sanctity of contract

Issues in the judgment

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minor

The judgment inconsistently refers to the statutory power to lease: paragraph 40 cites 'Section 56 of the Land Act' while paragraph 27 refers to 'Section 56 of the Registered Land Act (now repealed.)' and Section 73 of the Land Act.

minor

The Plaint sought rent arrears of Ksh 870,000/= but the evidence at trial spoke of Ksh 795,000/= paid and a fresh claim of Ksh 200,000/=; the court instead granted general damages for unpaid rent without quantification.

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, "Solomon Kipkoech Kemei & another v Mohamud Mohamed Mohamud & another [2022] KEELC 907 (KLR)", Case Analysis (2022). ELC No. 60 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/907/eng@2022-03-10

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