https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/479

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA** **MAGISTRATE COURT CIVIL** **CIVIL CASE NO. E199 OF 2021** **DEBORA A. OLOO…………………………………………………………........PLAINTIFF** **VERSUS** **AFRICAN INDEPENDENT PENTECOSTAL CHURCH OF AFRICA** **(AIPCA) MAKANDE...........................................................................1ST DEFENDANT** **BEDAN ELIJAH……………………………………………………………2ND DEFENDANT** **JUDGMENT** **Introduction** 1. The Plaintiff commenced these proceedings by a Plaint dated 5th May 2021 seeking general damages, costs of the suit and interest arising from what she describes as her unlawful eviction from business premises owned by the 1st Defendant and managed by the 2nd Defendant. Her case is that she was a lawful tenant of the Defendants, that she had undertaken improvements to the premises with their authority, and that despite the existence of a controlled tenancy, the Defendants unlawfully dispossessed her of the premises without complying with the mandatory provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. 2. The Defendants deny the claim. Their case is that the Plaintiff had accumulated rent arrears amounting to Kshs.162,000, that she voluntarily agreed to vacate the premises after discussions with the 2nd Defendant, and that her belongings were merely stored safely awaiting collection. They further contend that any dispute concerning the tenancy ought to have been determined by the Business Premises Rent Tribunal. 3. The matter proceeded for hearing on 26th February 2026 when the Plaintiff testified and was cross-examined. The defence hearing proceeded on 22nd April 2026, during which the 2nd Defendant testified on behalf of both Defendants and was likewise cross-examined. Upon the close of the oral hearing, the Court directed the parties to file written submissions. **Pleadings** 1. The Plaintiff pleads that she became a tenant of the Defendants in 2014. She initially paid monthly rent of Kshs.6,000, which was later increased to Kshs.8,000 after she undertook extensions and improvements to the premises. She avers that around April 2020 the Defendants unlawfully closed her business premises, seized her property and falsely alleged that she owed rent arrears amounting to Kshs.162,000. She maintains that the allegation of arrears was false and unsupported by any records and that she had never been informed of such indebtedness. Following verbal demands and a notice of intention to sue, she instituted the present proceedings seeking general damages, costs and interest. 2. The Defendants filed a Statement of Defence denying liability. They admit only the existence of the parties but deny unlawfully evicting the Plaintiff or seizing her property. They plead that the Plaintiff accumulated rent arrears of Kshs.162,000, voluntarily agreed to vacate the premises, and that her goods were placed in storage pending collection. They further plead that the dispute ought to have been filed before the Business Premises Rent Tribunal and pray for dismissal of the suit with costs. **Evidence** Plaintiff's Evidence 1. The Plaintiff adopted her witness statement and documents. Her evidence was that she occupied the suit premises as a business tenant from 2014. She testified that she renovated and extended the premises with the Defendants' approval, after which rent increased from Kshs.6,000 to Kshs.8,000 monthly. 2. She stated that without prior notice the Defendants closed her premises and prevented her from accessing her business. She denied owing rent arrears in the amount alleged by the Defendants and maintained that the closure of her premises caused interruption of her business and loss. 3. During cross-examination she admitted that her business experienced financial difficulties during the Covid-19 pandemic, although she disputed both the amount of rent alleged to be outstanding and the legality of the Defendants' actions. **Defence Evidence** 1. The defence called one witness, Bedan Muriithi Elijah, the Chairman of the 1st Defendant. He testified that the Plaintiff had accumulated rent arrears amounting to Kshs.162,000. 2. According to him, rather than levy distress through auctioneers, he convened a meeting with the Plaintiff during which she voluntarily agreed to vacate the premises. He stated that the Plaintiff's belongings were transferred into another room belonging to the church and remained safely stored awaiting collection. He denied locking out the Plaintiff or unlawfully evicting her. 3. He further maintained that the dispute properly belonged before the Business Premises Rent Tribunal. **Submissions** 1. Counsel for the Plaintiff submits that the tenancy was a controlled tenancy under Cap. 301 and that the Defendants were legally required to issue a statutory notice before terminating the tenancy. It is submitted that no notice was issued and no order authorising recovery of possession was ever obtained. Consequently, the Plaintiff argues that the eviction was unlawful. She relies on Gusii Mwalimu Investment Co. Ltd & Others v Mwalimu Hotel Kisii Ltd, Nthaka Ltd v National Social Security Fund, Lucy Njeri Ngunjiri & Others v Anthony Kimeu & Others, and Ronald Nguru Gathara & Another v Cliff Mbala, urging the Court to award Kshs.1,000,000 as general damages. 2. The Defendants submit that no eviction occurred. They argue that the Plaintiff voluntarily surrendered possession after falling into substantial rent arrears. They further submit that the dispute should have been presented before the Business Premises Rent Tribunal and rely on Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd, Francis Muiruri v Bernard Gathuku Ngugi, Evans Otieno Nyakwana v Cleophas Bwana Ongaro, David Bagine v Martin Bundi, Hahn v Singh, among other authorities. They pray that the suit be dismissed with costs. **Issues for Determination** 1. Having considered the pleadings, evidence and submissions, the issues for determination are: 2. Whether the tenancy between the parties was a controlled tenancy. 3. Whether the Plaintiff proved unlawful eviction. 4. Whether the Plaintiff voluntarily surrendered possession. 5. Whether the Plaintiff proved her entitlement to damages. 6. Whether the objection on jurisdiction is merited. 7. What orders should issue. **Analysis** Whether the tenancy was a controlled tenancy 1. There is no dispute that the Plaintiff occupied commercial premises belonging to the 1st Defendant from 2014. Both parties agree there was no written tenancy agreement. 2. Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act defines a controlled tenancy to include a tenancy of a shop which has not been reduced into writing. Accordingly, I find that the tenancy between the parties was a controlled tenancy governed by Cap. 301. Whether the Plaintiff proved unlawful eviction 1. The Plaintiff bears the burden of proof by virtue of Sections 107 to 109 of the Evidence Act. The Plaintiff's case is that the Defendants closed the premises without notice. The Defendants' case is that she voluntarily vacated. The Defendants did not produce: any written agreement evidencing voluntary surrender; any letter from the Plaintiff agreeing to vacate; any acknowledgment confirming delivery of vacant possession; minutes of the alleged meeting; or any independent witness to the alleged agreement. The only evidence supporting voluntary surrender is the testimony of DW1. 2. Conversely, although the Plaintiff immediately challenged the Defendants' actions by issuing demand and filing suit, she equally produced no evidence demonstrating that the Defendants physically removed her by force. The Court must therefore determine which version is more probable. 3. I attach significance to one undisputed fact. The Defendants admit that they took possession of the premises without first issuing the statutory notice contemplated under Section 4 of Cap. 301. They equally admit that they never obtained any order from the Business Premises Rent Tribunal authorising termination of the tenancy. Instead, they rely entirely upon alleged consent. 4. The Court of Appeal in Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd recognised that a landlord need not obtain an order where a tenant voluntarily surrenders possession. However, consent is a question of fact which must be proved. 5. In the absence of documentary evidence or independent corroboration, I am not satisfied that the alleged voluntary surrender has been established on a balance of probabilities. I therefore find that the Defendants failed to demonstrate lawful recovery of possession. The Plaintiff has proved unlawful dispossession. Whether the Plaintiff voluntarily surrendered possession 1. The Defendants' principal defence is that the Plaintiff voluntarily vacated the suit premises after accumulating rent arrears amounting to Kshs. 162,000. According to DW1, the parties reached an agreement that the Plaintiff would vacate the premises, her belongings would be transferred to a store, and she would thereafter collect them at her convenience. 2. The law recognises that parties to a tenancy may mutually agree to terminate the tenancy. Where there is such mutual agreement, there is no requirement for the landlord to invoke the statutory procedure under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. Indeed, the Court of Appeal in Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd [1996] eKLR, relied upon by both parties, affirmed that where a tenant voluntarily gives up possession, a landlord need not first obtain an order of the Tribunal or Court. 3. The difficulty with the Defendants' case, however, lies in the evidence. The alleged agreement was entirely oral. No written agreement was produced. No minutes of the alleged meeting were tendered. No acknowledgement by the Plaintiff confirming voluntary surrender was produced. Neither was any independent witness called to corroborate the alleged agreement despite the evidence that discussions allegedly took place. 4. The Court appreciates that oral agreements are enforceable. Nevertheless, where the alleged agreement is relied upon to defeat a claim founded on unlawful eviction, the evidence supporting such agreement must be clear, cogent and convincing. 5. Further, if indeed the Plaintiff voluntarily vacated, it is difficult to reconcile that position with the fact that she immediately protested the Defendants' actions, issued demand, and promptly instituted the present proceedings seeking damages arising from unlawful eviction. 6. The Court therefore finds that the Defendants have failed to discharge the evidential burden of proving that the Plaintiff voluntarily surrendered possession of the premises. Whether this Court had jurisdiction 1. The Defendants submitted that the dispute ought to have been filed before the Business Premises Rent Tribunal established under Cap. 301. It is beyond dispute that disputes relating to controlled tenancies ordinarily fall within the jurisdiction conferred upon the Tribunal by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. 2. However, jurisdiction must always be considered in the context of the reliefs sought. The Plaintiff did not seek assessment of rent, determination of a tenancy notice, or reference of a dispute pending before the Tribunal. Instead, by the time this suit was instituted, the Plaintiff alleged that she had already been dispossessed of the premises and sought compensation by way of damages for the alleged unlawful acts of the Defendants. 3. The Defendants neither raised a preliminary objection nor sought the striking out of the suit at the earliest opportunity. Instead, they filed a defence, participated fully in pre-trial procedures, cross-examined the Plaintiff, called evidence and only pursued the jurisdictional argument substantively in their final submissions. 4. While jurisdiction cannot be conferred by acquiescence or consent, this Court is satisfied that it possesses jurisdiction to determine the Plaintiff's claim for damages arising from the alleged unlawful eviction. The objection on jurisdiction is therefore not merited. Whether the Plaintiff proved entitlement to damages 1. Having found that the Plaintiff was unlawfully dispossessed of the premises, the remaining issue is whether she is entitled to damages and, if so, the appropriate quantum. 2. The Plaintiff seeks general damages but did not plead or prove special damages. It is settled law that special damages must not only be specifically pleaded but must also be strictly proved. Since none were pleaded, no award can be made under that head. The Plaintiff nevertheless seeks general damages for unlawful eviction. 3. The authorities cited by the Plaintiff demonstrate that courts have awarded general damages where landlords have unlawfully interfered with controlled tenancies or recovered possession without following due process. Those authorities are therefore relevant in establishing that an award of general damages may be appropriate where unlawful eviction is proved, although each case turns on its own facts. 4. The Defendants, on the other hand, relied upon authorities concerning the burden of proof and the requirement that damages must be established by evidence. Those authorities correctly state the applicable legal principles. However, they do not preclude an award of general damages where the Court is satisfied that a party has suffered loss through unlawful eviction. 5. In assessing damages, the Court has taken into account the following factors: the Plaintiff had occupied the premises from approximately 2014, a period of about seven years;the tenancy was a controlled tenancy protected by statute; the Defendants failed to demonstrate compliance with the statutory procedure for recovery of possession; the Plaintiff's business was interrupted by the loss of possession; the Plaintiff admittedly experienced financial difficulties during the Covid-19 period, and the evidence establishes that rent arrears had accumulated, although the parties disputed the precise amount and circumstances; the Plaintiff did not prove any specific financial loss capable of separate compensation. 6. The Court is therefore required to strike a balance between compensating the Plaintiff for the unlawful manner in which possession was recovered while recognising that the Plaintiff herself was not entirely free from blame, having fallen into rent arrears during the subsistence of the tenancy. 7. In my discretion, I consider an award of Kshs. 150,000 as general damages to be fair, reasonable and proportionate. **Final Orders** 1. Accordingly, judgment is entered for the Plaintiff against the Defendants jointly and severally in the following terms: 2. A declaration is hereby issued that the Plaintiff was unlawfully dispossessed of the suit premises. 3. The Plaintiff is awarded general damages in the sum of Kshs. 150,000 for the unlawful eviction. 4. The award of general damages shall attract interest at court rates from the date of this judgment until payment in full. 5. The Plaintiff shall have the costs of the suit. It is so ordered. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** ............................................ **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**