[2021] KEELC 2938 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC SUIT NO. 73 OF 2018

PAMPA GRILL LIMITED………………………...….1ST PLAINTIFF

PAMPA CHURRASCARIA

(UNDER ADMINISTRATION)LIMITED…….........2ND PLAINTIFF

VERSUS

NORTH LAKE LIMITED…………………….....….1ST DEFENDANT

BUENA BIZZ LIMITED…………………….………2NDDEFENDANT

JUDGMENT

The 1st plaintiff and the 1st defendant entered into a lease agreement for a term of five (5) years and three (3) months commencing on 1st September, 2012 and terminating on 30th November, 2017 in respect of all that parcel of land known as L.R No. 330/352, Nairobi (hereinafter referred to only as “the suit property”). The 1st plaintiff leased the suit property from the 1st defendant for the purposes of a restaurant business that was operated by the 2nd plaintiff. The plaintiffs brought this suit against the defendants through a plaint dated 19th February, 2018 which was amended on 13th November, 2019. In their amended plaint, the plaintiffs averred that the 1st plaintiff incurred expenses to the tune of Kshs. 37,401,998. 33 in repairing and renovating the suit property which amount the 1st defendant had not refunded to it. The plaintiffs averred that by a letter dated 18th September, 2017, the 1st defendant informed the 1st plaintiff that it did not intend to renew the 1st plaintiff’s lease in respect of the suit property upon its expiry on 30th November, 2017. The plaintiffs have averred that despite this notice, the 1st plaintiff paid to 1st defendant a sum of Kshs. 430,691/- on account of rent for the month of December, 2017 which payment was accepted by the 1st defendant.

The plaintiffs averred that through a letter dated 7th December, 2017, the 2nd defendant informed the 1st plaintiff through its advocates, Munyalo Muli & Company Advocates that the 2nd defendant had entered into a contract with the 1st defendant to lease the suit property and had paid rent to the 1st defendant for the premises. The plaintiffs averred that through the said letter from its advocates, the 2nd defendant demanded possession of the suit property from the plaintiffs. The plaintiffs averred that on or about 4th January, 2018, the 1st plaintiff paid to the 1st defendant a sum of Kshs. 1,292,073/- equivalent to three months’ rent as further security deposit in the expectation that the 1st defendant would renew its lease in respect of the suit property.

The plaintiffs averred that on 15th January, 2018, the 2nd plaintiff filed a suit at the Business Premises Rent Tribunal and obtained an order in Nairobi BPRT Case No. 40 of 2018(“the tribunal suit”) restraining the 1st defendant from interfering with its quiet possession of the suit property pending the inter-partes hearing of an application for injunction that it had filed in the said suit. The plaintiffs averred that on the same date namely, 15th January, 2018, the 1st defendant moved to the Chief Magistrates Court at Nairobi and irregularly obtained an ex-parte order in Nairobi CMCC No. 9414 of 2017 (hereinafter referred to only as “the lower court suit”) for the eviction of the 1st plaintiff from the suit property pending the inter-partes hearing of an eviction application that the 1st defendant had filed before that court. The plaintiffs averred that on 18th January, 2018, Siuma Auctioneers acting on the instructions of the 1st defendant executed the said irregular order from the lower court by illegally and irregularly evicting the plaintiffs forcefully from the suit property.

The plaintiffs averred that during the said forceful eviction, some of the plaintiffs’ properties were stolen while others were seriously damaged. The plaintiffs averred that the goods that were stolen and those that were destroyed were valued at Kshs. 11,942,455/-. The plaintiffs averred that their forceful eviction from the suit property was illegal and irregular for various reasons among them that; as at the time of the eviction, there was an existing order issued by the Business Premises Rent Tribunal (“the tribunal”) restraining the 1st defendant from interfering with the 2nd plaintiff’s occupation of the suit property and that the 1st defendant had accepted the rent for the month of December, 2017 in the sum of Kshs. 430,691/- and a further security deposit in the sum of Kshs. 1,292,073/-. The plaintiffs averred further that as at the time of their eviction, the 1st defendant had not refunded to the 1st plaintiff a sum of Kshs. 37,401,998. 33/- that it had incurred in repairing and renovating the suit property at the commencement of its tenancy and a sum of Kshs. 900,000/- that the 1st plaintiff had paid as the first security deposit under the lease that expired. The plaintiffs averred further that the said eviction orders were obtained by the 1st defendant from the lower court through misrepresentation and concealment of material facts.

The plaintiffs averred that after their unlawful eviction by the defendants from the suit property using the said orders that the 1st defendant had obtained irregularly from the lower court, the 1st defendant mischievously and fraudulently withdrew the lower court suit in which it had obtained the said eviction orders without serving the application pursuant to which the said orders had been issued upon the 1st plaintiff to enable it defend itself. The plaintiffs averred that the said lower court suit was withdrawn by the 1st defendant so as to conceal the illegal and irregular manner in which the said eviction orders were obtained.

The plaintiffs averred that during their forceful eviction from the suit property, some items such as CCTV cameras, safe, generator, power back up, Brazilian Grill and the hoods in steel water tanks remained in the suit property. The plaintiffs averred further that after their forceful eviction, some of their items that included chimneys, wine racks, grill mortars, water pumps, computers, shelves, horse pipe, permanent grill, tents and fixed furniture, DSTV and Zuku dishes, CCTV cameras and safe all valued at Kshs. 3,278, 000/- were converted by the defendants to their own use. The plaintiffs averred further that they lost a lot of items through destruction and theft during the eviction that included; stock at the bar, water, sodas, juices, beers, liqueurs, blended whisky, cognac, malt whisky, Irish whisky, Canadian whisky, American whisky, brandy, aperitifs, gin, vodka, rum, tequila, wines, cigarettes, operating equipment, meat stock in stores and freezer all valued at Kshs. 8,664,455/-. The plaintiffs averred that the total value of their properties that were either converted, destroyed and/or stolen by the defendants was estimated at Kshs. 11, 942,455/-.

The plaintiffs averred further that they suffered loss of profits estimated at Kshs. 61,223,995/- for the 2018 financial year. The plaintiffs averred that as a consequence of the 1st defendant’s breach of the plaintiffs’ legitimate expectation that their lease would be renewed and their subsequent illegal forceful eviction from the suit property by the defendants, the plaintiffs had suffered loss, mental anguish, anxiety and had been deprived of their constitutional right to utilize the suit property.

The plaintiffs sought judgment against the defendants for;

a. Kshs. 37,401,998. 33 being the amount incurred by the 1st plaintiff in the repairs and renovation of the suit property.

b. Kshs. 900,000/- being the first security deposit.

c. Kshs. 430, 691/- being the rent for December, 2017.

d. Kshs. 1,292,073/- being further security deposit.

e. Kshs. 61,223,995/- being loss of profits for the year 2018.

f. Kshs. 11,942,455/- being the value of the goods/assets converted, stolen and/or destroyed or damaged during the illegal eviction.

g. Interest on the above.

h. General and punitive damages.

i. Costs of the suit plus interest.

The defendants were served with Summons to enter appearance and appointed the firm of Masore Nyang’au & Co. Advocates to act for them in the suit. The said advocates did not file a defence on behalf of the defendants to the plaintiffs claim. The suit was fixed for formal proof and the plaintiffs called three witnesses in proof of their claim against the defendants. Prior to the commencement of the hearing, the court was informed that the defendants’ advocates on record had been served and having satisfied itself that service was indeed effected upon the firm of Masore Nyang’au & Co. Advocates, the court allowed the hearing of the matter to proceed. The defendants’ advocates did not appear at the trial. After the close of the plaintiffs’ case, the court directed the parties to make closing submissions in writing. The plaintiffs filed their submissions on 24th August, 2020 while the defendants did not file submissions.

The court fixed the matter for judgment on 11th February, 2021. While perusing the file for the purposes of writing the judgment, the court noted from the record that on 26th April, 2018, the firm of W.G. Wambugu & Co. Advocates had filed a notice of change of advocates dated 25th April, 2018 through which the said firm took over the conduct of the defendants’ case from the firm of Masore Nyang’au & Co. Advocates. It was not clear to the court from the record whether the plaintiffs’ advocates were served with this notice of change of advocates. All the affidavits of service on record showed that the plaintiffs’ advocates were all along serving the firm of Masore Nyang’au & Co. Advocates on behalf of the defendants. It was that firm that was served with a hearing notice and submissions. The court formed the view that if it was true that it was the firm of W.G. Wambugu & Co. Advocates that was on record for the defendants and that the plaintiffs’ advocates had been informed of this change of advocates, then the hearing of this matter that took place on the basis that the defendants were represented by the firm of Masore Nyang’au & Co. Advocates would be irregular and liable to be set aside.

In the circumstances, the court decided to determine the issue of representation of the defendants before writing the judgment that was pending herein. The court felt that the judgment risked being set aside for irregularity should it turn out that the hearing was conducted without notice to the advocates who were on record for the defendants. In a ruling delivered on 11th February, 2021, the court invited the firms of Mutua, Nyongesa & Muthoka Advocates for the plaintiffs and, Masore Nyang’au & Co. Advocates and W.G. Wambugu & Co. Advocates on behalf of the defendants to address it on the issue of representation of the defendants in this matter.

The said firms of advocates appeared before the court and addressed it on the issue of representation of the defendants. In a ruling dated 15th April, 2021, the court made a finding that it was the firm of Masore Nyang’au & Co. Advocates that was all along on record for the defendants and as such the hearing of the suit was conducted regularly. That finding paved the way for the writing and delivery of this judgment.

At the trial, the plaintiffs called three witness, Edwardo Debastiani (PW1), Moses Kago Mukunya (PW2) and Olivia Sally Otieno (PW3). PW1 told the court that he was a director of the plaintiffs. PW1 adopted his witness statement filed in court on 15th November, 2019 as his evidence in chief and produced the plaintiffs’ bundle of documents that was filed in court on the same date as PEXH.1. PW1 stated that: The plaintiffs entered into a lease with the 1st defendant in respect of the suit property. When the plaintiffs entered into a lease with the 1st defendant, there was an old house standing on the suit property that was constructed in 1970s. The plaintiffs converted the said house into a restaurant. In the process of converting the said old house into a restaurant, the plaintiffs carried out extensive renovation to the said building. The plaintiffs also carried out extension to the said building and also put up a perimeter wall around the property. When the plaintiffs took possession of the suit property the building that was thereon was uninhabitable. Through the said renovations and extension, the plaintiffs converted the premises to a five-star restaurant.

The lease between the plaintiffs and the 1st defendant was for 5 years and 3 months with effect from 1st November, 2012. The lease was to expire on 30th November, 2017. The 1st defendant gave the plaintiffs a notice to vacate the suit property by the said expiry date of the lease. Upon receipt of the said notice, the plaintiffs approached the 1st defendant for lease extension and the 1st defendant agreed to extend the said lease on new terms. That explains why the plaintiffs did not vacate the suit property by 31st November, 2017. The plaintiffs paid the rent for the month of December, 2017 to the 1st defendant and the same was accepted. The 1st defendant did not also refund the payment that the plaintiffs had made as a deposit.

The plaintiffs received a letter dated 7th December, 2017 from the 2nd defendant claiming that the plaintiffs were trespassers on the suit property. On receipt of this letter, the plaintiffs filed a suit against the defendants at the Business Premises Rent Tribunal (hereinafter referred to only as “the tribunal”). The tribunal issued an order in favour of the plaintiffs restraining the defendants from interfering with the plaintiffs’ possession of the suit property. After obtaining the said order, the plaintiffs made further payment of rent for the months of January, February and March, 2018 which payment was also accepted by the 1st defendant.

On 18th January, 2018, PW1 received information from the plaintiffs’ employees on the suit property that auctioneers had entered the suit property and were causing destruction to the premises. The said auctioneers were accompanied by a group of people and policemen. The said auctioneers claimed that they had a court order for the eviction of the plaintiffs from the suit property. When the suit property was invaded by the said auctioneers, the restaurant was open and there were few patrons inside. The said auctioneers did not give the plaintiffs time to remove their properties from the restaurant. The persons who invaded the premises threw out the plaintiffs’ goods out of the premises. The plaintiffs managed to collect some of the goods from where they were thrown outside the restaurant while a number of items got lost during their eviction from the suit property. A number of items also remained inside the restaurant. The plaintiffs were not allowed to remove the same. The goods that went missing were valued at Kshs. 593,728/= while the value of items that remained on the suit property and which the plaintiffs were not allowed to remove was Kshs. 3,278,000/=. The value of the alcohol that went missing during the eviction of the plaintiffs from the suit property was Kshs. 1,792,577/= while the value of the equipment that got lost was Kshs. 2,425,043/=. The restaurant that was being run by the plaintiffs on the suit property specialized in barbecue. The meat that got lost during the eviction was valued at Kshs. 828,995/=. The plaintiffs also lost wines and champagne valued at Kshs. 713,407/=. The plaintiffs’ total loss arising from their eviction from the suit property was Kshs. 11,942,455/=.

PW1 stated that the plaintiffs were not served with summons to enter appearance or any court document issued in the suit in which an eviction order was allegedly issued against them. He stated that the affidavit of service on the strength of which the said orders were issued was false since the person who was alleged to have been served was off-duty when he was alleged to have been served. PW1 stated that the plaintiffs were evicted from the suit property on 18th January, 2018 after the suit in which the eviction order was issued had been withdrawn on 29th December, 2017. PW1 stated that the plaintiffs were also claiming Kshs. 37,401,998. 33 being the amount that they spent in renovating, repairing and extending the building on the suit property and Kshs. 900,000/= being a refund of the deposit that they paid when entering into the lease with the 1st defendant. He stated that the plaintiffs were also claiming Kshs. 430,691/= that was paid as rent for December, 2017, Kshs. 1,292, 073/= paid as security deposit on 4th January, 2018, Kshs. 61,223,995/= being loss of profits and Kshs. 11,942,455/= being the value of the goods and other items that got lost during the plaintiffs’ illegal eviction from the suit property. PW1 urged the court to award the plaintiffs interest on the amounts claimed and the costs of the suit.

PW1 referred the court to the photographs that were taken on the suit property when they took possession thereof, photographs taken during the renovation, repairs and extension of the premises, photographs taken after the completion of the renovations, repairs and extensions and photographs of the wall that they put up around the property. PW1 also referred the court to the photographs of their goods that were thrown out of the restaurant on the suit property during their eviction, a list of their items that went missing, stolen or destroyed during the eviction, a list of their items that remained on the suit property and which they were denied permission to collect, an inventory of the dry goods that went missing, an inventory of alcohol that went missing, an inventory of the equipment that got lost, an inventory of meat that went missing, an inventory of wines and champagne that went missing and a summary of all that was lost by the plaintiffs during the eviction.

Moses Kago Mukunya (PW2) was an accountant. He told the court that he was a certified public accountant practicing under the name, Kago Mukunya & Associates and that he prepared the statements of account of the 2nd plaintiff for the year ended 31st March, 2017. He stated that during that financial year 2016, the 2nd plaintiff’s profit after tax was Kshs. 29,598,349/= while in the year 2017, its profit after tax was Kshs. 35,616,054/=. He stated that using these figures, he projected that the 2nd plaintiff’s net profit before taxation for the year 2018 could have been Kshs. 61,223,995/=.

Olivia Sally Otieno (PW3) was a quantity surveyor. PW3 told the court that he was the one who prepared the report at page 111 of PEXH.1. PW3 stated that she was instructed by the plaintiffs in November, 2018 to visit the suit property and assess the value of the works that they had undertaken thereon. PW3 stated that when she visited the suit property, she found that a lot of damage had been done to the premises. She stated that the plaintiffs sent to her the photographs of the premises taken before and after the renovations and also explained to her the works that they had undertaken. PW3 stated that she took measurements at the site and that for the things that had been damaged, she used photographs to do the costing. She stated that the works undertaken by the plaintiffs were demolition works and new works. She stated that there were also renovation works undertaken to the existing areas. PW3 stated that the plaintiffs had also constructed a wall around the suit property and a drive way. She stated that the particulars of all the works that were undertaken by the plaintiffs are set out in her report. She stated that she assessed the cost of the works at a total of Kshs. 37,401,998. 33 inclusive of 2. 5% preliminaries which is a standard addition.

After the close of evidence, the plaintiffs filed closing submissions dated 5th August, 2020 on 24th August, 2020. The plaintiffs submitted that their eviction from the suit property was illegal and irregular for various reasons. The plaintiffs averred that as at the time of their eviction from the suit property, the 1st defendant had not refunded to the plaintiffs a sum of Kshs. 37,401,998. 33 that they had incurred in the renovation, repairs and extension of the building on the suit property. The plaintiffs averred further that the 1st defendant had also not refunded a sum of Kshs. 900,000/= that was paid by the plaintiffs as security deposit and Kshs. 430,691/= that the plaintiffs had paid as rent for December, 2017. The plaintiff averred further that a sum of Kshs. 1,292,073/= that the plaintiffs had paid on 4th January, 2018 as further security deposit had also not been refunded.

The plaintiffs submitted that the said eviction was also illegal because there was in existence an order that was issued by the tribunal on 15th January, 2018 restraining the defendants from interfering with the plaintiffs’ quite possession of the suit property. The plaintiffs averred further that the eviction orders that were issued ex-parte in Nairobi CMCC No. 9414 of 2017(the lower court suit) were also illegal. The plaintiffs submitted that the said orders were issued through misrepresentation and concealment of material facts as to service of the application and other court documents. The plaintiffs submitted that the lower court suit was illegally withdrawn on 29th December, 2017 before the illegal eviction was carried out on 18th January, 2018. The plaintiffs submitted that the withdrawal of the lower court suit was mischievous and fraudulent in that the application in which the eviction orders were made was never served and that the process server who was alleged to have served the same was not registered as a process server in Kenya. The plaintiffs submitted that they were not aware of the suit and the said application. The plaintiffs submitted that the suit was withdrawn so as to conceal the fraudulent manner in which the 1st defendant had obtained the said eviction order.

The plaintiffs submitted that the illegal actions of the defendants aforesaid were actuated by bad faith, malice and greed. The plaintiffs submitted that the they had suffered loss of profits to the tune of Kshs. 61,223,995/= for the financial year 2018 as a result of the illegal eviction from the suit property. The plaintiffs submitted that their claim was meritorious and urged the court to enter judgment in their favour as prayed for in the amended plaint.

I have considered the amended plaint, the evidence tendered by the plaintiffs in support of their claim and the submissions by the plaintiffs’ advocates. The plaintiff framed 6 issues for determination by the court namely;

1. Whether there was a subsisting implied lease between the 1st plaintiff and the 1st defendant after 30th November, 2017 in respect of the suit property.

2. Whether the eviction of the plaintiffs from the suit property was carried out in contempt of the orders that were issued by the tribunal on 15th January, 2018.

3. Whether the eviction order that was obtained by the 1st defendant in the lower court was illegal, fraudulent, null and void.

4. Whether the pleadings and the orders that were issued by the lower court were properly served upon the plaintiffs.

5. Whether the eviction of the plaintiffs from the suit property was illegal and malicious.

6. Whether the plaintiffs are entitled to the reliefs sought in the amended plaint.

Whether there was a subsisting implied lease between the 1st plaintiff and the 1st defendant after 30th November, 2017 in respect of the suit property.

The terms of the lease dated 1st November, 2012 between the 1st plaintiff and the 1st defendant are clear and require no interpretation beyond the literal meaning of the clauses of the lease. The lease was for a term of 5 years and 3 months commencing on 1st September, 2012 and terminating on 30th November, 2017. The lease had no renewal clause. On 18th September, 2017 before the expiry of the lease, the 1st defendant notified the 1st plaintiff that it would not renew its lease upon its expiry on 30th November, 2017 and requested the 1st plaintiff to make arrangement to vacate and hand over the suit property at the expiry of the lease. The plaintiffs have contended that after receipt of the said notice, the 1st plaintiff had a discussion with the 1st defendant and the two agreed that the 1st plaintiff’s lease would be renewed and that it was on the basis of that understanding that the plaintiffs paid rent for December, 2017. The plaintiffs have contended that the acceptance of the said rent by the 1st defendant was also an indication of the agreement that the 1st plaintiff had reached with the 1st defendant regarding the renewal of the lease. The plaintiffs contended further that the 1st defendant’s failure to refund the security deposit paid at the commencement of the lease and the monies spent by the plaintiffs in renovating, repairing and extending the building that was on the suit property were further evidence that the 1st defendant had agreed to renew the lease. Section 38 of the Land Act, 2012 provides as follows on disposition of an interest in land:

38. (1) No suit shall be brought upon a contract for the disposition of an interest in land unless—

(a)the contract upon which the suit is founded—

(i) is in writing;

(ii) is signed by all the parties thereto; and

(b)the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party.

(2) Subsection (1) shall not apply to a contract made in the course of a public auction nor shall anything in that subsection affect the creation or operation of a resulting, implied or a constructive trust.

In section 2 of the same Act, disposition is defined as follows:

“disposition” means any sale, charge, transfer, grant, partition, exchange, lease, assignment, surrender, or disclaimer and includes the disclaimer or the creation of an easement, a usufructuary right, or other servitude or any other interest in a land or a lease and any other act by the owner of land or under a lease where the owner’s rights over that land or lease are affected or an agreement to undertake any of the dispositions;

Although the plaintiffs claimed that there was an agreement between the 1st plaintiff and the 1st defendant for the extension of the lease on the basis of which the plaintiffs have called upon the court to imply the existence of a lease, no evidence of such agreement was placed before the court. There is also no evidence that the 1st defendant accepted the rent that was paid by the plaintiffs for the month of December, 2017 after the expiry of the lease. In any event, the acceptance of such rent per se could not create a lease or entitle the 1st plaintiff to an extension of its lease that had expired. Section 60 of the Land Act, 2012 provides as follows:

60. (1) If a lessee remains in possession of land without the consent of the lessor after the lease has been terminated or the term of the lease has expired, all the obligations of the lessee under the lease continue in force until such time as the lessee ceases to be in possession of the land.

(2) A lessor who accepts rent in respect of any period after the lease has been terminated or the term of the lease has expired, shall not, by reason of that fact, be deemed to have consented to the lessee remaining in possession of the land, or as having given up on any of the rights or remedies of the lessor against the lessee for breach of a covenant or condition of the lease, and if the lessor continues to accept rent from a tenant who remains in possession for two months, after the termination of the lease, a periodic lease from month to month shall be deemed to have come into force.

From the evidence on record, I am not satisfied that the 1st defendant accepted rent from the plaintiffs for two months in terms of section 60(2) of the Land Act, 2012 that would have entitled the 1st plaintiff to a periodic tenancy beyond 30th November, 2017. On 7th December, 2017, the 1st plaintiff was informed by the 2nd defendant’s advocates that the 1st defendant had entered into a new lease with the 2nd defendant in respect of the suit property and that it should vacate the premises immediately. The plaintiffs were thereafter evicted forcefully from the suit property on 18th January, 2018.

In the absence of evidence that the 1st plaintiff’s lease that expired on 30th November, 2021 was renewed or that the 1st plaintiff became a periodic tenant pursuant to section 60(2) of the Land Act, 2012, I am unable to find that a lease or an implied lease existed between the 1st plaintiff and the 1st defendant after 30th November, 2017.

2. Whether the eviction of the plaintiffs from the suit property was carried out in contempt of the orders that were issued by the tribunal on 15th January, 2018.

On the evidence before me, I am unable to say that the orders issued by the tribunal on 15th January, 2018 were disobeyed by the defendants. The plaintiffs were evicted from the suit property on 18th January, 2018 pursuant to the orders that were issued by the lower court on 15th January, 2018. The lower court suit in which the said eviction orders were made was filed on 22nd December, 2017 before the 2nd plaintiff’s suit in the tribunal. It appears to me that there were two conflicting orders from two adjudicatory institutions made on the same day over the same subject matter. The orders made by the lower court were for the eviction of the 1st plaintiff from the suit property while those from the tribunal were restraining the eviction of the 1st plaintiff. This conflict could only be resolved by a higher court. Until an order was made by a higher court as to which of the two orders was enforceable, the enforcement of any of the two orders could not be said to constitute contempt of the other. Both orders had equal force. Under section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya, once an order of the tribunal is filed at the lower court, it is enforceable as an order of that court.

For the foregoing reasons, I am not satisfied that the defendants breached the orders issued by the tribunal on 15th January, 2018 when they evicted the plaintiffs from the suit property on 18th January, 2018.

Whether the eviction order that was obtained by the 1st defendant in the lower court was illegal, fraudulent, null and void.

The plaintiffs have attacked the lower court eviction order on many fronts. The main one being that the 1st plaintiff was not served with summons to enter appearance and the application in which the order was issued. I am of the view that the issue as to whether the 1st plaintiff was served with the application and other pleadings that were filed in the lower court should have been dealt with by the lower court. I have however noted that for reasons that were known only to the 1st defendant, the 1st defendant proceeded to withdraw the lower court suit after the interlocutory order of eviction was issued and the plaintiffs evicted from the suit property. Without a suit to go back to to challenge their eviction, the plaintiffs cannot be blamed for bringing this suit and raising issues which should otherwise been dealt with by the lower court or an appellate court. The 1st plaintiff could not file an appeal against the said eviction order. Such an appeal would have been a futile exercise. The order had been issued, executed and the suit withdrawn. The plaintiffs pleaded in the amended plaint that the 1st plaintiff was not served with the application in which the eviction order was issued and other pleadings which were filed in the lower court by the 1st defendant. PW1 reiterated in his evidence that the 1st plaintiff was not served and that the process server had sworn a false affidavit.

From the material before this court, the 1st defendant filed the lower court suit against the 1st plaintiff on 22nd December, 2017. In its plaint of the same date, the 1st defendant sought;

1. A declaration that the 1st plaintiff’s continued occupation of the suit property was unlawful and constituted illegal trespass.

2. An eviction order compelling the 1st plaintiff to move out of the suit property or be evicted.

3. General damages for illegal trespass.

4. Costs of the suit and interest.

Together with the plaint, the 1st defendant filed an application by way of Notice of Motion dated 22nd December, 2017 in which the 1st defendant sought the following orders;

1. That the 1st plaintiff’s continued occupation of the suit property was unlawful and constituted intrusion and illegal trespass.

2. That an eviction order be issued compelling the 1st plaintiff to move out of the suit property pending the hearing and determination of the application inter-partes.

3. That an eviction order be issued compelling the 1st plaintiff to move out of the suit property pending the hearing and determination of the suit.

4. That Siuma Auctioneers do evict the 1st plaintiff as per the orders above.

5. That the Officer Commanding Muthangari Police Station (O.C.S) do provide security during the enforcement of the eviction orders.

From the evidence on record, on 22nd December, 2017, the lower court directed that the application be served for hearing inter-partes on 29th December, 2017. According to the affidavit of service of one, Omambia Mososi Godffrey dated 28th December, 2017 and filed in court on 29th December, 2017, he served the said application with a hearing date endorsed thereon upon the 1st plaintiff’s manager one, Enock on 22nd December, 2017 at around 5. 25 p.m. When the application came up for hearing on 29th December, 2017, the 1st plaintiff did not appear and the lower court granted orders on the following terms;

1. That pending the hearing of the application inter-partes an eviction order be and is hereby issued compelling the defendant (1st plaintiff) to move out of the suit property.

2. That Siuma Auctioneers be and is hereby authorized to evict the defendant (1st plaintiff) from the suit property.

3. That the applicant to serve the application for inter-partes hearing on 11th January, 2018.

From the evidence on record, it is not clear as to what happened on 11th January, 2018. It appears that the next time the eviction application came up for hearing before the lower court was on 15th January, 2018. On that day again, the 1st plaintiff was not present and the lower court gave the following orders;

1. That an eviction order is hereby issued compelling the defendant (1st plaintiff) to move out of the suit property pending the hearing and determination of this application inter-partes.

2. That Siuma Auctioneers do evict the defendant (1st plaintiff) from the suit property.

3. That the Officer Commanding Muthangari Police Station (OCS) do provide security during the enforcement of the eviction order.

There is no evidence on record that the 1st plaintiff was served with a notice of the hearing date of 11th January, 2018 that was given in court on 29th December, 2017 or the hearing date of 15th January, 2018 when the eviction orders of 15th January, 2018 through which the plaintiffs were evicted from the suit property were given. The orders of 29th December, 2017 and 15th January, 2018 were both temporary. They were given pending the hearing of the eviction application inter-partes. The application was never heard inter-partes neither was the suit heard. Upon obtaining the said orders of eviction on 15th January, 2018, the 1st defendant evicted the plaintiffs from the suit property on 18th January, 2018 through Siuma Auctioneers. A day after evicting the plaintiffs from the suit property on the basis of the said temporary orders, the 1st defendant’s advocates Kinyua Mbaabu & Co. Advocates signed a Notice of Withdrawal of the lower court suit. That notice which was dated 19th January, 2018 was filed in court on 25th January, 2018. On 13th February, 2018, the lower court issued an order to the effect that the suit that had been filed before it by the 1st defendant through a plaint dated 22nd December, 2017 was withdrawn and the extracted order had a penal notice. This withdrawal of the lower court suit scuttled any attempt by the plaintiffs herein to challenge the said eviction orders that were granted ex-parte.

Were the said orders legal? The 1st defendant’s application in the lower court sought an eviction order pending the hearing and determination of the suit. There is no provision in the Civil Procedure Rules granting the court power to issue an order for eviction pending either the hearing of an application inter-partes or a suit. The court has power to grant a temporary mandatory injunction in exceptional circumstances. What was before the lower court was however not an application for a mandatory injunction. The application sought possession of the suit property at interlocutory stage. In my considered view, an order for possession of a property in the occupation of a tenant whose lease has expired can be granted in a summary manner only in an application brought under Order 36 rule 1 (b) of the Civil Procedure Rules. Such application would be entertained by the court only after the defendant has entered appearance and not otherwise. Where no appearance is entered, the plaintiff has to list the matter for formal proof. An order of possession given under Order 36 rule 1(b) of the Civil Procedure Rules gives rise to a final or preliminary decree. Once the issue of possession is determined under that order, the same is not open for further litigation in the suit.

With all due respect to the lower court, there is nothing like an eviction order pending the hearing of an application for eviction inter partes or of a suit. What the lower court engaged in was total illegality and with the withdrawal of the suit, it aided the 1st defendant to inflict gross injustice upon the plaintiffs. Before marking the case as withdrawn, I wonder whether the court bothered to consider the grave injustice that was being perpetrated against the 1st plaintiff. How can an order of eviction be given ex-parte and then a suit is marked as withdrawn before the application in which the order was made is heard inter partes? The effect of the orders given by the lower court was that the 1st plaintiff was evicted from the suit property without due process. As I have already highlighted, the proceedings of the lower court were muddled with irregularities such that no valid order could arise therefrom. All the rules of natural justice and fair play were thrown out of the window. I even doubt if the lower court had jurisdiction to entertain the 1st defendant’s claim. The suit property is situated in Lavington, Nairobi. As at the time the 1st defendant filed a suit against the 1st plaintiff in the lower court, the rent for the premises was Kshs. 430,691/= per month. It appears as if the 1st defendant had to get possession of the suit property by hook or by crook. It is regrettable that a court of law was used to achieve that evil scheme by the 1st defendant.

I believe that I have said enough to show that the eviction orders that were issued by the lower court on 29th December, 2017 and 15th January, 2018 had no basis in law. The same were therefore unlawful, null and void.

Whether the pleadings and the orders that were issued by the lower court were properly served upon the plaintiffs.

As I have stated earlier, the 1st plaintiff denied in the amended plaint and through the evidence that was given by PW1 that it was served with the pleadings that were filed in the lower court and the orders issued by that court before the suit was withdrawn. The defendants did not defend the suit. The averments in the amended plaint were therefore not controverted. The evidence of PW1 was also not challenged. On the evidence on record, it is my finding that the 1st plaintiff was not served with the pleadings and the application for eviction that were filed in the lower court. The conduct of the 1st defendant after it unlawfully obtained the said eviction orders leaves no doubt that it did not want the 1st plaintiff to be heard in the matter.

Whether the eviction of the plaintiffs from the suit property was illegal and malicious.

I have held that the eviction orders through which the plaintiffs were evicted from the suit property were illegal, null and void. In the Supreme Court of Virginia case of Jones v Willard 224 Va. 602,607 (Va. 1983), the court stated that:

“The judgment of a court, procured by intrinsic fraud, i.e., by perjury, forged documents, or other incidents of trial related to issues material to the judgment, is voidable by direct attack at any time before the judgment becomes final; the judgment of a court, procured by extrinsic fraud, i. e., by conduct which prevents a fair submission of the controversy to the court, is void and subject to attack, direct or collateral, at any time.”

In Fritts v Krugh, Supreme Court of Michigan, 92 N.W.2d 604, 354 Mich. 97(1958), the court stated that:

“A "void" judgment, as we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any manner of collateral attack (thus here, by habeas corpus). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years…..later, when the memories may have grown dim and rights long been regarded as vested any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been.”

In Macfoy vUnited Africa Co. Ltd. (1961)3 All ER 1169, Lord Denning stated as follows at page 1172:

“If an act is void then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court to declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Since the plaintiffs were evicted from the suit property pursuant to a void order, the eviction was unlawful. This is because a void order is not an order. It means therefore that the plaintiffs eviction was conducted without a lawful court order. In the case of Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd, Court of Appeal at Kisumu, Civil Appeal No.160 of 1995, the court stated that:

‘‘it is trite law that unless the tenant consents or agrees to give up possession the landlord has to obtain an order of a competent court or a statutory tribunal (as appropriate) to obtain possession.’’

In the absence of a lawful order for the eviction of the plaintiffs from the suit property, it is my finding that the eviction was illegal. The manner in which the plaintiffs were evicted also leaves no doubt that the eviction was malicious.

Whether the plaintiffs are entitled to the reliefs sought in the amended plaint.

I have at the beginning of this judgement set out the reliefs sought by the plaintiffs in their amended plaint. I will consider each head of claim one after the other. The first claim is in the sum of Kshs. 37,401,998. 33 for repairs and renovations that were carried out by the 1st plaintiff. I find no basis for this claim in the lease between the 1st plaintiff and the 1st defendant. I have noted from the lease that the 1st defendant had given the 1st plaintiff a moratorium on rent and a rent waiver during the period when the 1st plaintiff was carrying out renovation and repairs on the building on the suit property. In clause 2(iii) of the lease, it is provided that the 1st plaintiff was to use the rent for the month of September, 2012 for the repairs, renovations and any modifications that it intended to carry out on the suit property. The lease did not provide that the 1st defendant would refund or reimburse the 1st plaintiff the additional expenses incurred in the said repairs and renovations over and above the said rent for September, 2012. I am of the view that although the 1st plaintiff had proved that it incurred the expenses claimed, there is no basis upon which the defendants can be held liable for the same.

The second claim by the plaintiffs is for a sum of Kshs. 900,000/= being the first security deposit that was paid by the 1st plaintiff to the 1st defendant when they entered into a lease in respect of the suit property. According to clause 2(v) of the lease, the amount was refundable at the expiry of the lease. The 1st defendant has not contended that circumstances arose that would make the said amount not refundable. The claim has in the circumstances been proved. The third claim is for Kshs. 430,691/= being the rent that the plaintiffs paid for December, 2017. I am of the view that the plaintiffs are not entitled to this amount. The plaintiffs were in occupation of the suit property during the month of December, 2017. The payment was in the circumstances due to the 1st defendant for that occupation. The fourth claim is for Kshs. 1,292,073/= made on 4th January, 2018 as further security for the new lease that the plaintiffs thought they would get. Since the 1st defendant did not renew the 1st plaintiff’s lease, there is no basis upon which the 1st defendant can keep this payment. The claim has been proved. The fifth claim is for Kshs. 61,223,995/= being loss of profit for the financial year 2018. I have held earlier in the judgment that the 1st plaintiff’s lease expired on 30th November, 2017 and was not renewed. The plaintiffs did not therefore have a right to remain in occupation of the suit property in the year 2018. It follows therefore that the defendants are not liable for any loss of profit that the 1st plaintiff may have incurred during the year 2018. Such loss does not flow directly from the plaintiffs’ illegal eviction from the suit property. The fact that the plaintiffs were evicted illegally from the suit property does not mean that they had a right to be on the suit property. What the court found illegal was the process and the manner in which the eviction was carried out. A case has not been made out for this claim.

The sixth claim is for Kshs. 11,942,455/= being the value of the plaintiffs’ goods and/or items that were converted, stolen, destroyed or damaged during their forceful eviction from the suit property. I am satisfied from the evidence on record that this claim has been proved. The plaintiffs last claim was for general and punitive damages for illegal eviction. I have held that the plaintiffs’ eviction from the suit property was illegal and malicious. In the circumstances, a case had been made out for both general and punitive damages. Taking all factors into account including the fact that the 1st plaintiff’s lease had expired, I will award the plaintiffs a sum of Kshs. 5,000,000/= under this head of claim.

Conclusion:

In conclusion, I find the plaintiffs’ case proved as against the 1st defendant. I therefore enter judgment for the plaintiffs against the 1st defendant for;

1. Kshs. 900,000/= being the first security deposit.

2. Kshs. 1,292,073/= being further security deposit.

3. Kshs. 11,942,455/= being the value of or compensation for the plaintiffs’ goods or assets that were converted, stolen, destroyed and/or damaged during the illegal eviction.

4. Kshs. 5,000,000/= being general and punitive damages for illegal eviction.

5. Interest on 1 and 2 above at court rates from the date of filing suit and on 3 and 4 above at court rate from the date hereof until payment in full.

6. Costs of the suit.

Delivered and Dated at Nairobi this 10th Day of June 2021

S. OKONG’O

JUDGE

Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:

Mr. Makokha for the Plaintiffs

Mr. Mugo h/b for Mrs.Wambugu for the Defendants

Ms. C. Nyokabi-Court Assistant