https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5006

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. 813 OF 2017** **PETAL INVESTMENT LIMITED........….......……..........PLAINTIFF** **=V*ERSUS=*** **TRIPPLE N CAR CLINIC LIMITED.......…......…........DEFENDANT** **JUDGMENT** **Introduction** 1. The dispute in this suit revolves around a lease relating to **Go-Down No A9** located on **Land Reference Number 4953/2306,** **Thika Municipality** [*the suit premises*]. Vide an instrument of lease dated 15/10/2016, the plaintiff leased the suit premises to the defendant for a term of five years and three months, effective from 15/10/2016. One year after commencement of the lease, the plaintiff brought the present suit, alleging that the defendant had defaulted in his rent obligations and had failed to heed their notice terminating the lease on account of non-payment of rent. Among other reliefs, the plaintiff sought an order decreeing eviction of the defendant from the suit premises. They also sought mesne profits against the defendant. 2. In answer to the plaintiff’s claim, the defendant filed an amended defence and counterclaim in which they contested the plaintiffs claim. They further contended that the plaintiff had unlawfully evicted them from the suit premises. By way of counterclaim, they prayed for, *interalia*, special damages in the sum of Kshs 12,745,560. The plaintiff’s primary suit and the defendant’s counterclaim are the subject of this Judgment. 3. Some of the key questions that fall for determination in the Judgment are: (i) Whether the plaintiff is entitled to mesne profits; and (ii) Whether the defendant is entitled to the special damages sought in the counterclaim. I will summarize the parties’ respective cases before I analyse and dispose all the issues that fall for determination in the suit. **Plaintiff’s Case** 1. The plaintiff’s case is contained in the plaint dated 30/10/2017; the witness statement of **Grace Gakenia** dated 30/10/2017 and her further witness statement dated 12/10/2021; the oral testimony of Grace Gakenia tendered on 14/2/2024; and the written submissions dated 26/5/2026, filed by ***M/s CM Advocates LLP***. 2. Through the plaint dated 30/10/2017, the plaintiff averred that at all material times they were the registered proprietors of the suit premises. On 15/10/2016, they entered into a lease agreement with the defendant, pursuant to which they leased the suit premises ***[Go-down No A9***] to the defendant for a term of 5 years and 3 months at an initial monthly rent of Kshs 302,064, inclusive of service charge and VAT. The monthly rent was subject to an annual increment as specified in Clause 3 of the Lease. It was a term of the lease agreement that the monthly rent would be payable in advance on or before the 5th day of every month. It was a further term of the lease agreement that any unpaid rent would attract interest at 10% per month and that the plaintiff would be entitled to determine (terminate) the lease and repossess the premises in the event that the defendant defaulted to pay the rent. 3. The plaintiff averred that the defendant subsequently defaulted to pay rent, prompting them to serve a notice terminating the lease and requiring the defendant to give vacant possession of the premises. They added that the defendant failed to give vacant possession of the premises on 17/9/2017, prompting them to initiate this suit. 4. The plaintiff prayed for the following verbatim reliefs: - 5. ***A mandatory order of eviction from Go-down No. A9 erected on Property Land Reference Number 4953/2306 situate in Thika Municipality in Kiambu County;*** 6. ***A permanent order restraining the defendant together with its agents, servants or anybody claiming under them from re-entering, wasting away, sub-leasing and or in any way interfering with the plaintiff’s peaceful, quiet possession and enjoyment of the Property Land Reference Number 4953/2306 situate in Thika Municipality in Kiambu County;*** 7. ***Mesne profits at the rate pleaded at paragraphs 4 and 5 of the plaint from the due date as per the lease until payment in full;*** 8. ***Interest on (c) above at the rate of 10% per month from due date as per the lease until payment in full;*** 9. ***Costs of this suit; and*** 10. ***Any other order that the Court may deem fit to grant.*** 11. During trial, the plaintiff led evidence by **Grace Gakenia** who testified as **PW1**. She adopted her two written statements dated 30/10/2017 and 12/10/2021 respectively. She produced: (i) Copy of the lease dated 15/10/2016; (ii) Copy of the rent statement dated 18/10/2017; (iii) Copy of a tenancy termination notice dated 17/8/2017; (iv) Copy of an authorization dated 12/10/2021 authorising her to testify on behalf of the company; (v) Copy of a letter of offer dated 13/9/2016 from the plaintiff addressed to the defendant; (vi) Copy of the Lease dated 15/10/2016; (vii) Copy of a second lease termination notice letter dated 12/9/2017 together with a posting certificate; (viii) Copy of a rent statement dated 13/10/2021 covering the period from 13/7/2017 to 2/3/2018; (ix) Copy of a letter dated 11/1/2018 instructing ***M/s Bealine Kenya Auctioneers*** to levy distress for rent in the sum of Kshs.1,299,050.41; (x) Copy of a court order by the Principal Magistrate Court at Milimani dated 31/1/2018; and (xi) Copy of a notice published in a local newspaper relating to intended public auction of the defendant’s assets. 12. PW1 reiterated the plaintiff’s case as summarized above, adding that subsequent to the filing of this suit, the defendant continued to occupy the suit premises without paying rent, thereby accumulating arrears totaling Kshs 1,299,050.41 as at January 2018. She stated that, as a consequence, vide an order issued by the Principal Magistrate Court at Milimani in **Milimani CMC Miscellaneous Application No 65 of 2018**, the said court authorized ***M/s Bealine Kenya Auctioneers*** to levy distress and sell the defendant’s assets to recover the unpaid rental sums, which the said auctioneer did. 13. In her testimony during cross-examination, she stated that she could not recall the exact deposit which the defendant paid at the commencement of the lease. She added that clause 3.1.4 of the Lease did not specify whether the penalty of 100% interest on unpaid rent was per annum. She stated that at the time they levied distress, they were demanding Kshs 1,299.050.41. She testified that whereas she had been informed that the distress took place and the distrained assets of the defendant were sold, she did not know how much money was recovered through the public auction. PW1 stated that the defendant left the premises on their own volition after the distress and the public auction. **Defendant’s Case** 1. The defendant filed a defence dated 17/11/2017. They subsequently applied for leave to amend their pleadings and plead a counterclaim. They subsequently filed an amended defence and counterclaim dated 22/4/2020 in which they admitted executing the lease but contended that the lease was unenforceable due to want of proper attestation. They added that the lease was inadmissible in evidence due to non-payment of stamp duty. They denied defaulting to pay rent. 2. By way of counterclaim, the defendant contended that the plaintiff evicted them without a court order contrary to the law, adding that the plaintiff locked the premises and converted to its own use [confiscated] their tools of trade, equipment records, and books of accounts. They termed the plaintiff’s actions as unjustified and illegal. They contended that, as a consequence of the plaintiff’s actions, they lost the premises, their equipment and the value of the improvements which they had done on the premises. They quantified their special damages at Kshs 12,745,560 and prayed for the following verbatim reliefs: 3. ***Special damages of Kshs12,745,569.00.*** 4. ***General damages.*** 5. ***Costs of the suit.*** 6. ***Any other relief this court may deem fit to grant.*** 7. At the hearing, the defendant led evidence by **Alexander Njonde Kamau** who testified as **DW1**. He adopted his written statement dated 15/10/2021. He did not produce any documentary evidence. His evidence was that, at all material times, the plaintiff was the registered proprietor of the demised premises. The defendant leased the premises to them through a lease dated 15/10/2016, which was executed by the parties. The lease was, however, not enforceable due to want of attestation; want of consent of the chargee; non-payment of stamp duty; and want of registration. 8. **DW1** added that the defendant paid a security deposit of Kshs 520,800 and rent for the first month whereafter they took the demised premises and embarked on the process of making improvements on the premises to meet their requirements. He contended that the plaintiff initiated this suit without giving a schedule of the alleged unpaid rent, adding that the suit was pre-mature. 9. DW1 testified that while this suit was pending, the plaintiff employed unorthodox means to deny them entry into the demised premises, thereby crippling their business. He added that the plaintiff orchestrated their eviction from the demised premises, contending that the plaintiff ought to have obtained an eviction order in this cause. He stated that the plaintiff locked the demised premises and confiscated their tools of trade, records and books of accounts. 10. DW1 stated that he was not aware of **Milimani CMC Miscellaneous Application No 65 of 2018**, adding that the plaintiff never accounted for the proceeds of the distress/auction and the security deposit. He urged the court to award the defendant the sum of Kshs 12,745,560 sought in the counterclaim. 11. In his testimony during cross-examination, **DW1** stated that under Clause 3.1.6 of the lease, the defendant was required to pay the equivalent of 3 months rent as security deposit, which totaled Kshs 604,128, adding that the defendant only paid Kshs 520,800. He conceded that there was a time the defendant defaulted in its rent obligations. He stated that the defendant was evicted through denial of access to the demised premises. He confirmed that he had not presented documentary evidence to support the defendant’s claim for special damages in the sum of Kshs 12,745,560. **Analysis and Determination** 1. The court has considered the parties’ pleadings, evidence and submissions. The following are the key issues that fall for determination in the suit: (i) Whether admissibility of the material lease document as evidence in this suit is an issue for determination at this point of the proceedings; (ii) Whether the tenancy contract between the parties is enforceable; (iii) Whether the distress for rent which the plaintiff levied against the defendant in early 2018 was illegal; (iv) Whether the plaintiff illegally evicted the defendant from the demised premises; (v) Whether the plaintiff has made out a case for the reliefs sought in the primary suit; (vi) Whether the defendant has made out a case for the reliefs sought in the counterclaim and; (vii) What order should be made with regard to costs of the primary suit and the counterclaim. I will analyse and dispose the seven issues sequentially in the above order. 2. Is the question of admissibility of the material lease document an issue in these proceedings at this point? Pre-trial proceedings in this suit commenced before Hon F. Mutuku (Deputy Registrar) on 1/12/2020 and were concluded before the same Deputy Registrar on 17/2/2021 when she listed the matter for hearing on 19/10/2021. The defendant did not object to the production or admission of the lease documents during pre-trial. 3. Hearing of the case commenced on 14/2/2024 when the plaintiff tendered their evidence and closed their case. Hearing of the defendant’s case commenced on 17/12/2024 and was concluded on the same day. Throughout the hearing of the plaintiff’s case, the defendant was represented by a ***Mr Waweru***. The defendant did not object to the production of the material lease documents. The defendant conceded to the production of the lease documents. Consequently, the lease documents were admitted as evidence and marked as duly produced exhibits. Having elected not to object to the admission of the lease documents at the above two stages, the defendant has raised the question of admissibility of the lease documents through their written submissions. 4. Clearly, the question of admission of the lease documents is at this point water under the bridge. It has been overtaken by events. The documents were admitted during trial without any objection by the defendant. The documents having been admitted during trial with the concession of the defendant, their admissibility is not an issue for determination at this stage. That is the finding of the court on the issue. 5. Is the tenancy contract between the two parties enforceable? There is common ground that the two parties entered into a tenancy contract for 5 years and 3 months commencing on 15/10/2016. From the evidence on record, the tenancy contract was anchored on a duly accepted letter of offer dated 13/9/2016. The said letter of offer contained fourteen clauses, thirteen of which were replicated in the subsequent lease instrument. 6. There is also common ground that the two parties executed the lease instrument. However, at the point the dispute in this suit arose, the exercise of executing the lease instrument had not been completed. The part requiring attestation to the defendant’s execution had not been completed. The defendant does not, however, contest the fact that they executed the lease and intended to be bound by the terms of the lease. Also not completed at the point the dispute arose was the part requiring consent of the chargee. 7. A perusal of the letter of offer and the lease instrument reveals that execution of the lease instrument commenced on the same day that the tenancy commenced and perfection of the lease instrument was incomplete at the time the dispute arose. 8. To the above extent, the court rejects the defendant’s view that there was no enforceable tenancy contract between the parties. There was an enforceable contract anchored on the letter of offer. Indeed, the defendant conceded that it was on the basis of the tenancy contract that they took possession of the premises on 15/10/2016. Consequently, the finding of the court is that there was a binding and enforceable tenancy contract between the two parties to this suit. 9. Was the distress for rent which the plaintiff levied against the defendant in early 2018 illegal? The defendant alleged that the distress was illegal. There is common ground that the plaintiff made a formal offer to the defendant and the defendant accepted to lease a go-down from the plaintiff. The duly accepted letter of offer was exhibited. Also exhibited was the resultant lease dated 15/10/2016 [the very day that the term of the lease commenced]. There is also common ground that the term of the lease commenced on the basis of the terms that were spelt out in the letter of offer and replicated in the lease dated 15/10/2016. The defendant did not tender evidence to demonstrate that the contractual relationship of the parties was governed by terms other than those that were set out in the exhibited letter of offer and replicated in the exhibited lease. Both the lease and the letter of offer bore identical terms. 10. The defendant was aware that the plaintiff came to court seeking an eviction order on the ground that the defendant was in breach of its obligation to pay rent and had presented documentary evidence to that effect. The defendant was also aware that in early 2018, the plaintiff levied distress on account of non-payment of the mutually agreed rent which had accumulated to Kshs 1,299,050.41. Against the above background, the defendant elected to withhold all evidence relating to rent they had paid to the plaintiff. Consequently, the plaintiff’s evidence on rent as at the time of the distress stood unrebutted. In the absence of any rebuttal evidence, the court has no basis upon which to doubt the rent statements presented by the plaintiff as conclusive evidence of default by the defendant. 11. Having conceded that they occupied the demised premises as a rent-paying tenant, the defendant had the burden of proving that at the time the plaintiff levied distress, the sum demanded by the plaintiff as rent and interest on unpaid rent was not due and owing. The defendant elected not to put forth that evidence. Consequently, the finding of the court is that in the absence of any order barring the plaintiff from recovering the unpaid rent, the plaintiff was entitled to levy distress for the unpaid rent in early January 2018. The distress was therefore not illegal. 12. Was the defendant illegally evicted from the demised premises in 2018? The position of the defendant is that they were illegally evicted from the demised premises in early 2018. In his sworn evidence, DW1 contended that the illegal eviction was effected through denial of entry into the Go-down. The position of the plaintiff is that all they did was to engage a licensed auctioneer to levy distress and recover unpaid rent. They contend that the defendant vacated the premises on their own volition after the auctioneer levied distress and auctioned the distrained goods. 13. As the party alleging illegal eviction, the defendant was obligated to tender evidence to tender evidence proving the allegation. In the present dispute, the defendant alleged and the plaintiff contested the allegation. The defendant stopped at that. The plaintiff is a limited liability company. So is the defendant. Denial of physical entry could not have happened without the involvement of human beings. In his evidence, DW1 stated as follows: ***“I was not evicted from the premises but I was denied access. I was evicted through denial of access.”*** 1. Given the plaintiff’s denial of the allegation of eviction, and taking into account DW1’s position that eviction was through denial of access, the court expected the defendant to put forth evidence identifying the persons who were involved in denying them entry; the precise date and time when they were denied entry; and the measures which the defendant took to formally bring the matter to the attention of the plaintiff. No such evidence has been tendered. Consequently, the court finds that, on a balance of probabilities, the defendant has failed to prove the allegation of illegal eviction from the demised premises. That is the finding of the court on the question as to whether the plaintiff illegally evicted the defendant from the demised premises. 2. Has the plaintiff made out a case for the reliefs sought in the primary suit? The first prayer in the plaint dated 30/10/2017 is a plea for an order decreeing eviction of the defendant from the suit premises. The plaintiff tendered evidence demonstrating that the defendant occupied the suit premises as a rent paying tenant and that the defendant subsequently defaulted in their obligation to pay rent. Were it not for the subsequent developments that took place after this suit had been filed, the court would not have hesitated to issue the eviction order. It has, however, emerged that the defendant vacated the suit premises in the first half of 2018 and the plaintiff took possession of the suit premises. Consequently, the plea for an eviction order is moot at this point. Suffice it to state that the tenancy stood determined/terminated when the defendant vacated the premises in the first half of 2018. This determination disposes prayer *(a).* Prayer *(b)* was a plea for a permanent injunction. In light of the court’s findings on the preceding issues, the plaintiff is properly entitled to the permanent injunction. 3. Has the plaintiff made out a case for mesne profits? The plaintiff did not plead the specific sums that they sought as mesne profits. They chose to refer the court to the lease. It does emerge from the evidence presented in this suit that as at the time of filing the suit, the defendant owed the plaintiff Kshs 347,548.81 as rent arrears and interest. It does also emerge that as at January 2018, the defendant owed the plaintiff Kshs 1,299,050.41 as unpaid rent and interest. PW1 testified that in January 2018, the plaintiff instructed M/s Bealine Kenya Auctioneers to levy distress and recover the above money. Distress was levied and a number of the defendant’s assets were proclaimed, advertised and subsequently sold to recover the rent arrears. 4. The plaintiff did not disclose to the court the amount that was recovered through the public auction. The plaintiff did not lead evidence by the auctioneer on how much was recovered by them out of the public auction. In the absence of evidence relating to what was realized out of the public auction, the court has no basis upon which to make a finding that the plaintiff is entitled to more money from the defendant in form of mesne profits. 5. The view the court takes is that the plaintiff having elected to pursue rent arrears through distress for rent during the subsistence of this suit, they were obligated to amend their pleadings and specifically plead for any unrecovered rent. They elected not to amend their pleadings. They also elected to withhold evidence relating to what was recovered by the auctioneer. Consequently, the court finds that the plaintiff has failed to prove entitlement to mesne profits. 6. Is the defendant entitled to the reliefs that were sought in the counterclaim? The sum of Kshs 12,745,560 which the defendant sought through the counterclaim is a special damages claim. The law on pleadings and proof of special damages is well settled. A claim of special damages must be specifically pleaded and proved. Not long ago, the Court of Appeal in ***Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR)*** reiterated the above principle in the following words: ***“In Bangue Indosuez v DJ Lowe and company Ltd [2006] 2 KLR 208 this court held inter alia that; “It was trite that special damages must not only be claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and probability of proof required depends on the circumstances and the nature of the acts themselves.”*** 1. In the present case, the defendant pleaded special damages of Kshs 12,745,560 but completely failed to tender documentary evidence relating to the said claim. The result is that the court has no evidentiary basis upon which to award the relief. 2. Secondly, the court has made a finding to the effect that the distress for rent which the plaintiff levied was legitimate. No evidence of illegality was tendered by the defendant. Consequently, the finding of the court is that the defendant did not prove their counterclaim. 3. Guided by the principle in Section 27 of the Civil Procedure Act and taking the above findings into account, the court takes the view that parties should bear their respective costs of the primary suit and the counterclaim. **Disposal Orders** 1. In the end, the plaintiff’s suit and the defendant’s counterclaim are disposed as follows:- 2. ***Although the plaintiff proved breach of the tenancy contract by the defendant, the plea for an eviction order is moot at this point because the defendant is no longer in occupation of the suit premises.*** 3. ***The plea for a permanent injunction is allowed in terms of prayer (b).*** 4. ***The plaintiff’s plea for mesne profits is rejected wholly.*** 5. ***The defendant’s counterclaim is rejected wholly.*** 6. ***Parties shall bear their respective costs of the primary suit and the counterclaim.*** **DATED SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF JULY, 2026.** **B M EBOSO [MR]** **ELC JUDGE** ***NOTE:*** *Hearing of this suit was finalized on 17/12/2024 at the tail-end of my tour of duty as the ELC Presiding Judge in Kiambu Court [Thika] which ended on 13/1/2025. The matter was listed before the Thika ELC Deputy Registrar on 17/2/2025 to confirm filing of submissions and to transmit the file to my new station for judgment writing. The plaintiff did not file submissions until late May 2026. The file was transmitted to Meru ELC [my current station of work] vide a letter dated 28/1/2026. It had a mention date before the Meru ELC Deputy Registrar. The file eventually reached me through the causelist on 19/5/2026. Even at that point, the plaintiff had not filed submissions. The above context explains the long duration it has taken me to render this Judgment.* **B M EBOSO [MR]** **ELC JUDGE**