[2004] KEHC 497 (KLR)
The court held that the lease between the parties expired on 31st March 2004, and there was no agreement for its extension. The defendant's continued occupation after the expiry constituted trespass. The court found that any claim for wrongful eviction during the lease term would entitle the defendant to damages,...
Source-derived case information.
- Citation
- [2004] KEHC 497 (KLR)
- Parties
- Plaintiff: Relisa Housing Co-operative Society Ltd.; Defendant: Grace Atieno Okelo; Defendant: James Okelo Onyango t/a JOO Fashion Makers & General Agencies
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 426 of 2004
- Procedural Posture
- Civil Suit / Summary Judgment Application
- Outcome
- summary judgment for plaintiff; defence and counterclaim dismissed
- Judges
- PJ Ransley
- Legal Topics
- Lease Expiry, Trespass by Holding Over, Summary Judgment, Counterclaim for Renewal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Relisa Housing Co-operative Society Ltd.
Plaintiff
Grace Atieno Okelo
Defendant
James Okelo Onyango t/a JOO Fashion Makers & General Agencies
Defendant
Procedural Posture
Civil Suit / Summary Judgment Application
Legal Issues
- 1 Whether the defendant is a trespasser by holding over after expiry of the lease.
- 2 Whether the lease can be extended beyond its expiry date without agreement.
- 3 Whether the defendant's counterclaim for further occupation is tenable.
Ratio Decidendi
The court held that the lease between the parties expired on 31st March 2004, and there was no agreement for its extension. The defendant's continued occupation after the expiry constituted trespass. The court found that any claim for wrongful eviction during the lease term would entitle the defendant to damages, not an extension of the lease. The defendant's defence and counterclaim lacked merit as they did not establish any legal basis for continued occupation or renewal. Accordingly, the plaintiff was entitled to summary judgment for possession and costs.
Court Disposition
summary judgment for plaintiff; defence and counterclaim dismissed
Orders
- Summary judgment granted in favour of the plaintiff as prayed.
- Defendant's defence and counterclaim dismissed as having no merit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HGH COURT OF KENYA AT NAIROBI
Civil Suit 426 of 2004
RELISA HOUSING CO-OPERATIVE SOCIETY LTD.……………...PLAINTIFF
VERSUS
GRACE ATIENO OKELO
JAMES OKELO ONYANGO
T/A JOO FASHION MAKERS & GENERAL AGENCIES………DEFENDANTS
RULING
The Plaintiff seeks an order under 0 XXXV for summary judgment against the Defendant on the ground that the Defendant is holding over as a trespasser in respect of a lease that expired on the 31st march 2004.
The lease in question was granted on the 1st July 1999 for a period of 5 years and 3 months from 1st January 1999 expiring thereafter on the 31st January 2004. The Defendant who was the tenant applied for a renewal which was denied.
The Defendant put in a defence and a counterclaim, and a Replying affidavit to that application.
The Defence denied the Defendant has used the full term and had only occupied the premises for 1 year and 10 months and the counterclaim is for the Defendant to be allowed to remain in the premises for a further period of up to 5 years and three months.
The reason why the defendant did not occupy the premises throughout the whole period is because he was evicted by a company called Padoja Enterprises although Mrs. Geruswa submitted that this was an agent of the Plaintiff there is no evidence of this.
Indeed the judgment in CC No 6266 of 1999 referred to in the Replying affidavit shows that the Learned Magistrate found a letter purporting to have been written by the Plaintiff was a forgery.
However this is academic as even if the Plaintiff had displaced the Defendant the remedy would be in damages.
The lease cannot be extended beyond its expiry date in the absence of any agreement to that effect.
In the result the Defendant not having vacated the premises on the expiry date became a trespasser in the premises.
In the result l grant the l grant the order sought for as prayed. I dismiss the Defendant’s Defence and Counterclaim as having no merit or reasonable Defence to the claim.
The Plaintiff will have the costs
DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER 2004
P.J RANSLEY
JUDGE