https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4121

Kamau & another (Both Suing as the Administrators of the Estate of George Kamau Ngarama - Deceased) v Ratemo (Environment and Land Case E074 of 2024) [2026] KEELC 4121 (KLR) (6 July 2026) (Judgment) Neutral citation: [2026] KEELC 4121 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Case E074 of 2024 MAO Odeny, J July 6, 2026 Between Susan Wanjiru Kamau 1st Plaintiff Pauline Njoki Kamau 2nd Plaintiff Both Suing as the Administrators of the Estate of George Kamau Ngarama - Deceased and Benard Ondari Ratemo Defendant Judgment 1.By a Plaint dated 30th October, 2024, the Plaintiffs herein sued the Defendant seeking the following orders:a.Special damages of Kshs. 3,495,806.00 as specified under paragraph 10 above with interest at 14% p.a from April 2023, when the sums became due to date of full payment.b.A permanent injunction restraining the Defendant by himself, his servants, employees, agents and or any person acting under the Defendant’s instructions or at his behest from any manner whatsoever interfering with Nakuru Municipality Block 15/12 Dlux Hotel section 58 Nakuru City along Oginga Odinga road.c.A declaration that the lease agreement dated 1st April, 2015, stands rescinded and or revoked on account of breach on the part of the Defendant.d.The Defendant to meet the costs of this suit.e.Any other or further relief that this Honourable Court may deem just and expedient to grant. 2.The Defendant filed his Statement of Defence and Counterclaim dated 26th February, 2025, where he denied the contents of the Plaint and sought the following orders:a.The Plaintiffs’ suit be dismissed with costs and the counterclaim be allowed.b.Compensation for lost earnings as prayed in the counterclaim to be calculated at Kshs. 1,150,000.00 per week from 20th June, 2024 till expiry of the lease.c.Compensation for the vandalized losses whose value is yet to be ascertained.d.Costs of the counterclaim. Plaintiff’s Case 3.PW1, Pauline Njoki Kamau, adopted her witness statement dated 15th November, 2024, as her evidence in chief, and testified that she is the administrator of the estate of George Kamau Ngarama, who entered into a lease agreement dated 12th May, 2015, with the Defendant, for suit premises known as Delux Hotel on Oginga Odinga road Section 58. 4.PW1 produced her list of documents dated 15th November, 2024, as Pex No. 1 to 5 and testified that the lease was for 10 years, the Defendant was to pay Kshs. 150,000/ per month in the first 5 years, and Kshs 200,000/ per month in the subsequent 5 years. 5.PW1 further stated that the Defendant used to pay via M-pesa or cash as exhibited from the rent statement records. (Pex No. 3). It was PW1’s evidence that on 19th June, 2024, she went to the suit premises, and spoke to the Manager in the presence of the Defendant, that they were in rent arrears of Kshs. 383,000/= which tallied with the records produced. She further told the court that there was a debt of water and electricity bills of Kshs.348,476/= and Kshs.64,330/= respectively (Pex No. 4 and 5). 6.PW1 gave the Defendant 2 weeks to reconcile all the documents but later found out that they had removed all the items the night of 19th June, 2024. It was her evidence that the security guards reported the matter to the Police station and were issued with an OB. PW1 urged the court to grant the orders as prayed in the plaint. 7.Upon cross-examination by counsel for the Defendant, PW1 stated that the security guards reported the matter to Central Police Station, but did not have the OB number, and further that as at 19th June, 2024, there was a valid lease agreement, and the Defendant had 32 hotel rooms. PW1 confirmed that the hotel had a bar and that the business was busy. 8.PW1 was referred to paragraph 1 (g) and (h) where she confirmed that the lease was terminated without having informed the landlord, and that admitted that they had not tabulated the total costs. She further stated that she had placed the security guards on the premises beginning of June and that the Defendant was the one to engage the security guards. 9.PW1 denied violating any terms of the lease, and stated that the Defendant had removed all the stock and the things that remained were still on the premises, which she took inventory. It was PW1 stated that he could not confirm whether the Defendant was earning Kshs.1,150, 000,000/= or not. 10.Upon re-examination, by counsel, PW1 stated that she had placed the security guards on the premises since the Defendant was in the process of removing goods from the premises. 11.PW2, Joshua Tom Ondiba, adopted his witness statement dated 19th February 2026, as his evidence in chief and testified that the Plaintiff signed a security contract with him for provision of guards for her premises. It was his evidence that he reported the matter to the Police station and was issued with an OB extract No. 20 of 2021/6/2024, which he produced as Pex No.6. 12.On cross-examination, PW2 stated that his officers gave him a report that there were lorries at the suit premises but admitted that he did not know their registration numbers. He confirmed that his supervisor is the one who reported the matter to the Police station. 13.PW2 also testified that he was not aware whether the Defendant had been charged with a criminal offence and on re-examination, he stated that he went to the scene after the supervisor informed him of the incident. Defence Case 14.DW1, Bernard Ondari Ratemo adopted his statement filed on 25th February, 2025, as his evidence in chief, and produced his list of documents dated the same date as Dex No. 1 to 5. It was DW1’s testimony that he owed the Plaintiffs rent arrears but there was confusion since when Mr. Kamau passed on, the Plaintiffs and their sons claimed rent and he did not know whom to pay. 15.DW1 stated that by the time the Plaintiffs took over the premises, the lease had not expired, as there was a remainder of 11 months before the expiry. DW1 also stated that he had filed a counterclaim but failed to file documents in support, as they had gotten lost during the eviction. 16.DW1 testified that he was claiming the remainder of the lease, together with the deposit of 1.2million, and stated that he used to make Kshs.1.1million per week making a total of Kshs.50.6million. 17.On cross-examination, DW1 admitted that he was in rent arrears by the time he left the premises an did not deny the amount owed. He further stated that the unpaid water bill was for one month and electricity bill of Kshs.64,330/=. He further admitted that he had no records that showed he made 1.1million every week. Further, that he had no records for the sales, accommodation or the vandalized items. 18.According to DW1, he had neither claimed a refund of the rent deposit nor Kshs.50.6million in his counterclaim. Similarly, that he had not reported the forceful eviction by the Plaintiffs. Plaintiff’s Submissions 19.Counsel for the Plaintiff filed submissions dated 25th March, 2026, and submitted that it was not in dispute that the Defendant admitted the terms of the lease agreement, dated 1st April 2015, and therefore was bound by the terms of the lease. Counsel cited the Court of Appeal case of National Bank of Kenya Ltd V Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR 20.Mr. Murimi submitted that the Defendant defaulted in payment of rent which was contrary to the terms of the lease agreement, and his failure to pay rent arrears of Kshs. 3,083,000 by June 2024, and utility bills, followed by vacating the premises constituted a fundamental breach that entitles the innocent party to treat the contract as discharged. Counsel relied on the case of Mururu V Mwithali (Civil Appeal E181 of 2023) KEHC 3234 (KLR). 21.According to counsel, the breach was fundamental and the Defendant’s conduct of vacating the premises without notice led to repudiation of the lease. It was counsel’s further submission that Plaintiffs provided documentary evidence of the lease agreement, water, and electricity bills that showed failure by the Defendant to pay the said bills. He further submitted that the Defendant on the other hand only made mere denials that remained unsubstantiated, and cited that case of Bank (K) Limited V Wambua & 2 others (Civil Appeal E246 of 2023) KEHC 2555 (KLR). 22.On the Defendant’s counterclaim, counsel submitted that the Defendant had not proved the lost earnings and vandalized items, hence remained speculative and relied on the cases of Hahn V Singh [1985] KLR 716 and Kwanza Estates Limited V Jomo Kenyatta University of Agriculture and Technology KESC 74 (KLR). 23.Mr. Murimi submitted that the Plaintiff had proved her case against the Defendant hence should be granted the orders as prayed and cited the Court of Appeal case of Charles C. Sande V Kenya Cooperative Creameries Ltd [1992] eKLR, and the case of Giella V Cassman Brown & Co. Ltd [1973] EA 358. Defendant’s Submissions 24.Counsel for the 1st Defendant filed submissions dated 10th April, 2026, and identified two issues for determination as to whether the Defendant operated a business on the leased premises and whether Plaintiffs had the capacity to evict the Defendant. 25.On the first issue, as to whether the Defendant operated a business on the leased premises, counsel submitted that the Defendant was in occupation of the leased premises and the Plaintiff without any legal justification trespassed onto, vandalized the properties, and remained in possession of the premises. 26.Counsel further submitted that the Plaintiff took over the premises, which denied the Defendant access to his sales and accounting records. It was counsel’s submission that the Defendant was to put up additional facilities on the ground and balcony, for which monies the Plaintiffs were to refund upon termination of the lease before expiry. 27.On the issue, as to whether the Plaintiff had the capacity to evict the Defendants, counsel submitted that the limited grant ad litem issued to the Plaintiff on 20th June, 2024, was limited to defending the suit on behalf of the deceased’s estate and not for his eviction from the suit premises. 28.Mr. Tombe submitted that this court does not have jurisdiction to deal with succession matters including enlarging the scope of the grant of letters of administration, and cited Article 162(2)(b) of the constitution and the case of Esho (Suing as the legal representative of the Estate of Reteti Ole Esho) V Esho & 2 Others (Land Case E026 of 2025) [2026] KEELC 1602 (KLR). 29.According to counsel, the Plaintiffs had no court order to illegally evict the Defendant from the suit premises and therefore they ought to compensate the Defendant for the said loss, and relied on the cases of Gusii Mwalimu Investment Co. Ltd and Others V Mwalimu Hotel Kisii Ltd, Civil Appeal No. 160 of 1995 and Kamau Mucuha V Ripples Ltd [1993]. Analysis And Determination 30.The issues that arise for determination are:a.Whether the Defendant was in breach of the terms of the lease agreement dated 12th May 2015, for non-payment of rent, electricity and water bills.b.Whether the Plaintiff is entitled to the special damages as stipulated in the Plaint.c.Whether the Defendant has proved his counterclaim against the Plaintiff.d.Who is to bear the costs of the suit? 31.It was the Plaintiff’s case that the George Kamau Ngarama (deceased) on 1st April, 2015 entered into a 10-year lease agreement with the Defendant in respect of Nakuru Municipality/Block 15/12 the suit property. 32.The monthly rent for the leased premises was Kshs.150,000 that was subject to revision after the expiry of 5 years, to Kshs. 200,000. The Defendant in breach of the lease agreement failed to pay the rent Kshs.3,083,000/=, electricity and water bills amounting to Kshs. 64,330/= and Kshs. 348,476/= respectively. 33.It was also the Plaintiff’s case that the Defendant on the night of 19th and 20th June, 2024 moved out of the suit premises without paying the rent and utilities arrears. 34.The Defendant admitted that he signed a lease agreement for the suit properties but stated that on 20th June, 2024, the Plaintiff together with goons went to the suit premises, vandalized the properties and evicted him from the premises, therefore lost earning of Kshs. 1,150,000 per week together with the costs of the vandalized items. The Defendant however admitted that he was in arrears of rent, electricity and water bills. 35.It is not in dispute that the Plaintiff and the Defendant entered into a binding lease agreement, the terms and conditions of which were clear as stipulated in the lease agreement for the demised premises. It is also not in dispute that the Defendant is in rent arrears of Kshs.3,083,000/=, electricity and water bills amounting to Kshs. 64,330/= and Kshs. 348,476/= respectively. 36.In the case of Swalleh C. Kariuki & another -vs- Violet Owiso Okuyu [2021] eKLR, the Court of Appeal observed as follows:“…. In regard to special damages the law is quite clear on the head of damages called special damages. Special Damages must be both pleaded and proved, before the Court can award them. Suffice it to quote from the decision of the Court of Appeal in Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716, at P. 717, and 721 where the Learned Judges of Appeal - Kneller, Nyarangi JJA, and Chesoni Ag. J.A. - held:Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 37.Similarly in the case of Maritim & Another –vs- Anjere (1990 – 1994) EA 312, where the Court of Appeal held that:“..... it is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.” 38.The Court of Appeal in the case of Capital Fish Kenya Limited Vs Kenya Power & Lighting Company Limited (2016) eKLR held as follows:“Starting with the first issue, it is trite law that special damages must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit…” 39.The Plaintiff tendered oral and documentary evidence to prove the special damages in the Plaint, which was not controverted, by any evidence from the Defendant. 40.The Defendant filed a counterclaim for compensation for loss of earnings and the cost of the vandalized items but did not tender any evidence to support the claim. He also admitted that he did not have the documents to support the claim. He who alleges must prove. 41.Consequently, I find that the Plaintiffs have proved their case on a balance of probabilities and thus entitled to the orders sought. The Defendant has not proved his counterclaim dated 26th February, 2025, and is therefore dismissed with costs to the Plaintiff. 42.I therefore make the following specific orders:a.An order is hereby issued that the Plaintiffs are entitled to Special damages of Kshs. 3,495,806.00 as specified under paragraph 10 of the Plaint with interest at court rates from the date of the Judgment until payment in full.b.A permanent injunction is hereby issued restraining the Defendant by himself, his servants, employees, agents and or any person acting under the Defendant’s instructions or at his behest from any manner whatsoever interfering with NAKURU Municipality Block 15/12 Dlux Hotel section 58 Nakuru City along Oginga Odinga road.c.A declaration is hereby issued that the lease agreement dated 1st April, 2015, stands rescinded and or revoked on account of breach on the part of the Defendant.d.Defendant to bear costs of the suit.e.Defendant’s counterclaim is hereby dismissed with costs to the Plaintiff. DATED, SIGNED AND DELIVERED AT NAKURU THIS 6TH DAY OF JULY 2026.M. A. ODENYJUDGE