Barng’etuny v Kenya Oil Company (Environment & Land Case 340 of 2012) [2025] KEELC 2847 (KLR)
The bottom line
#The Eldoret court ruled that Rubis Energy remains a tenant, not owner, of an Eldoret property, ordered rent assessed by a valuer and eviction, and dismissed Rubis's ownership claim.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What was the nature of the relationship between the Plaintiff and the Defendant upon signing the agreement of 12th October, 1992
- 2.Was the sale agreement of 12th October, 1992 properly terminated
- 3.Did the Plaintiff extend the lease which expired on 31st July, 2000 in accordance with the lease agreement
- 4.What was the relationship between the parties after the expiry of the lease
- 5.Is the Plaintiff entitled to the reliefs in the amended plaint
- 6.Is the Defendant entitled to the reliefs in the amended defence and counterclaim
- 7.Which order is to be made on costs
Key legal issues
#Nature of the parties' relationship after the 1992 sale agreement
The Defendant remained a tenant, not a licensee, since it took possession under a lease
Clause 4 of the sale agreement subjected the parties to the Law Society Conditions of Sale 1989. Condition 6(1) provides that where a purchaser takes possession before completion other than under a pre-contract lease, the purchaser occupies as licensee. Here the Defendant was already in possession under a lease, so its occupancy remained that of tenant.
Whether the sale agreement of 12th October 1992 was properly terminated
Yes - the Defendant's conduct amounted to repudiation and the Plaintiff lawfully rescinded by letter of 31st January 1993
There was no express rescission clause. Following Beatrice Muthio Nzioka v Charles Akelo Ong'wen, absent such a condition rescission lies only where the purchaser repudiates and parties can be restored to their former position. The Defendant was not prepared to wait for completion; rescission restored the lessor/lessee relationship.
Whether the Plaintiff validly extended the expired lease and increased rent
No - the unilateral extension at Kshs.100,000 per month was contrary to clause 4 of the lease
Clause 4 required the tenant to indicate willingness to renew three months before expiry, with rent to be mutually agreed failing which an arbitrator would determine it. The Plaintiff's letter of 8th August 2000 unilaterally extended and fixed rent, so the extension did not comply with clause 4.
The parties' relationship after expiry of the lease
The Defendant became a month-to-month tenant terminable by one month's notice, and the tenancy was never terminated
The lease expired on 31st July 2000 and the sale agreement had been rescinded in 1993. The Defendant's continued occupancy therefore became a periodic tenancy on a month-to-month basis, which was never terminated, so it remains a tenant on the suit property.
Whether the Defendant acquired the suit property by adverse possession
No - the counterclaim is misconceived
A tenant's possession is the landlord's possession and cannot be adverse to the owner. Since the Defendant remained a tenant and the sale agreement had been lawfully rescinded, it could not prescribe against the Plaintiff's father's title.
Legal principles established
#- In the absence of a contractual condition entitling the vendor to rescind, the vendor may rescind a contract for sale of land only if the purchaser's conduct amounts to repudiation and the parties can be restored to their former position
- A tenant whose lease has expired and whose purchase agreement was rescinded occupies as a month-to-month tenant and cannot claim the property by adverse possession against the true owner
- A purchaser who takes possession under an existing lease remains a tenant, not a licensee, under the Law Society Conditions of Sale
Court orders
#- 1.An order for payment of rent payable monthly with effect from 1st August, 2000 until the time when the rent due is assessed by a valuer to be nominated by the Chairman of the Chartered Institute of Surveyors of Kenya, with a report to be filed in court within 30 days
- 2.An order of eviction to issue against the Defendant from LR No. Eldoret Municipality Block 7/111, the eviction to take effect within 30 days of the filing of the valuation of rent report in court
- 3.The assessed rent shall attract interest at court rates from the date of filing of valuation until payment in full
- 4.The plaintiff is at liberty to apply to court
- 5.The Defendant shall pay the costs of the suit
- 6.The Defendant's counterclaim is dismissed with costs to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution / ELC Act - not expressly cited in judgment)
Relief refused
#Rent at the unilateral rate of Kshs.100,000 per month totaling Kshs.6,700,000
The extension of the lease was not in accordance with clause 4 of the lease agreement, so the Plaintiff cannot unilaterally charge rent at that rate; rent is to be assessed by a valuer instead
An order directing the Defendant to discharge title from Kenya National Capital Corporation
The Defendant averred it had already discharged the property and the Plaintiff adduced no evidence that the property remained charged; courts do not give orders in vain
Costs
The Defendant shall pay the costs of the suit; the Defendant's counterclaim is dismissed with costs to the Plaintiff.
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 former position was that of lessor and lessee. I therefore find that the agreement was properly rescinded.
the Defendant’s occupancy became that of a month to month tenancy which was terminable by one month’s notice. The tenancy was not terminated. The Defendant is still on the suit property as a tenant.
The Defendant being a tenant in the suit property and the sale agreement having been rescinded cannot claim the property by adverse possession. I therefore find that the Defendant’s counterclaim is misconceived.
1. An order for payment of rent payable montly with efiect from 1st August, 2000 until the time when the rent due is asessed by a valuer to be nominated by the Chairman of the Chartered Institute of Surveyors of Kenya.
2. An order of eviction do issue against the Defendant from LR No. Eldoret Municipality Block 7/111. The eviction to take efect within 30 days of the time of the filing of the valuation of rent report in court.
5. The Defendant shall pay the costs of the suit.
Issues in the judgment
#The judgment inconsistently identifies the suit property, variously describing it as Eldoret Municipality Block 7/111/1, Block 7/111/12 and Block 7/111; the final eviction order uses Block 7/111
The judgment states the substitution application was allowed on 16th January 2022 although it was filed on 31st October 2022, an internally inconsistent chronology
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barng’etuny v Kenya Oil Company (Environment & Land Case 340 of 2012) [2025] KEELC 2847 (KLR)", Case Analysis (2025). Environment and Land Case (as stated in judgment, suit filed 26th April 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2847/eng@2025-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.