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ELCPartially AllowedNot stated in judgment

Syan & 2 others v Kihoro (Environment and Land Case 517 of 2017) [2025] KEELC 5176 (KLR)

Environment and Land Court
9 July 2025
COChristine Ochieng
1,591 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered a former tenant who stayed 17 years without a lease to pay Kshs 6.12 million in rent arrears, plus costs and interest.

What this practically means

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Executive summary

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The Plaintiffs, proprietors of LR No. 1/205 (referred to in places as LR 1/1205), sued the Defendant for eviction and rent arrears. Their case was that the Defendant's late wife, Dr Wanjiru Kihoro, held a two-year tenancy from 1st April 2001 which expired on 1st April 2003 by effluxion of time, after which the Defendant remained in occupation claiming his late wife had purchased the property, without paying rent. By a Ruling dated 8th February 2024, Justice Lucy Mbugua struck out the Defendant's Defence and Counterclaim and granted the eviction prayer; this judgment therefore concerned only the rent arrears and interest prayers. The 1st Plaintiff, an executor of the late Ranjeet Singh Syan's Will, testified as PW1 and adopted witness statements and documentary exhibits, testifying that arrears from filing of suit to the Defendant's eviction on 23rd November 2020 stood at Kshs. 6,120,000/=, and that as at March 2008 arrears were Kshs. 760,000/= for nineteen months' unpaid rent. The Defendant filed no submissions and tendered no evidence to controvert the Plaintiffs' averments; exhibits showed he had been convicted of forgery of a sale agreement over the suit land. The Court found the rent arrears claim proved, applying Court of Appeal authority that a holdover occupier without consent is liable to compensation. However, it declined mesne profits as unpleaded, holding parties bound by their pleadings. Judgment was entered for Kshs. 6,120,000/= with costs and interest at court rates. The Defendant's pending contempt application was deferred for later determination.

Questions the Court framed

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

  1. 1.Whether the Plaintiff is entitled to rent arrears of Ksh. 760,000/= as at 1st March 2008 with a monthly increment of ksh.40,000/= upto the date of eviction of the Defendant

Key legal issues

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01

Whether the Plaintiffs proved their claim for rent arrears for the Defendant's continued occupation of the suit premises

Holding

The Plaintiffs proved the claim; the Defendant tendered no evidence to controvert their averments, and judgment was entered for Kshs. 6,120,000/= from filing to eviction

Reasoning

PW1 testified that the tenancy expired by effluxion of time on 1st April 2003, yet the Defendant remained in occupation until eviction on 23rd November 2020 without a formal lease. The Defendant filed no evidence despite being served. The Defendant had even been convicted for forgery of a sale agreement over the suit land. The Court found the rent arrears claim proved and associated itself with the Court of Appeal decisions on rent arrears for continued occupation.

p. 4
02

Whether mesne profits, relied on in submissions, could be awarded

Holding

Mesne profits could not be awarded as they were not pleaded

Reasoning

Although the Plaintiffs' submissions invoked the Distress for Rent Act and mesne profits under the Civil Procedure Act, the Plaint itself only prayed for rent arrears. The Court held that parties are bound by their pleadings and declined to grant unpleaded relief, while noting the Court of Appeal's guidance that compensation for occupation without consent is properly characterised as mesne profits.

p. 3

Legal principles established

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  • A party in occupation of premises after expiry of a lease and without consent is a trespasser liable to compensate by way of mesne profits; erroneous reference to such payments as 'rent' does not negate that status
  • Parties are bound by their pleadings; a court cannot grant relief not pleaded

Court orders

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  1. 1.Rent arrears of Kshs. 6,120,000/= from date of filing this suit up to the date of eviction on the 23rd November, 2020
  2. 2.Costs of this suit to the Plaintiffs
  3. 3.Interest on the rent arrears at court rates until payment in full

The bench

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

CO
majority

Wrote the judgment

Jurisdiction invoked
Original civil suit over land (rent arrears and eviction) before the Environment and Land Court

Relief refused

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Mesne profits (as submitted for by the Plaintiffs)

Mesne profits were not pleaded in the Plaint; parties are bound by their pleadings

p. 3

Determination of the Defendant's Notice of Motion dated 23rd May 2025 seeking to cite the 1st Plaintiff for contempt

The Court deferred it, electing to first determine the rent arrears claim after the eviction

p. 3

Costs

Costs of this suit awarded to the Plaintiffs

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.

In the foregoing while associating myself with the decisions quoted, I find that the Plaintifis have proved their claim for rent arrears and will proceed to enter final judgment in their favour in the following terms:
p. 4Proof of rent arrears claim
a. Rent arrears of Kshs. 6,120,000/= from date of filing this suit upto the date of eviction on the 23rd November, 2020. b. Costs of this suit c. Interest on (a) above at court rates until payment in Full.
p. 4Final orders/disposition
It is trite that parties are bound by their pleadings and since they never pleaded for it, as a Court I am unable to grant this prayer.
p. 3Parties bound by pleadings
Looking at the exhibits produced by the Plaintifis, I note the Defendant had even been convicted and sentenced for forgery of Memorandum of Agreement of Sale of Land in respect to LR 1/205 (suit land) in Kibera CMCR. Case No. 5220 of 2015.
p. 3Defendant's conviction for forgery of sale agreement

Issues in the judgment

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minor

Inconsistency in the suit premises description: the Plaint is stated to refer to LR No. 1/205 in the narrative and LR No. 1/1205 in the prayers

minor

The claim was pleaded as Ksh. 760,000/= as at 1st March 2008 with monthly increments, but judgment was entered for Kshs. 6,120,000/= computed to eviction; the issue framed by the Court refers to the pleaded figure while the award differs

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, "Syan & 2 others v Kihoro (Environment and Land Case 517 of 2017) [2025] KEELC 5176 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5176/eng@2025-07-09

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