[2018] KEHC 5247 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CIVIL APPEAL NO. 24 OF 2015

ROSE WANGUI GITHIOMI.....................................APPELLANT

-versus -

NANCY NYAMBURA MAINA...............................RESPONDENT

(Being an appeal from the judgment and decree of the Hon. W.A Juma CM

delivered on the 15th July 2015 in CMCC no. 475 of 2016)

JUDGMENT

On 7th March 2005 the Plaintiff respondent and the defendant appellant entered into a written tenancy agreement over plot number NYERI/Municipality Block III/62.

It was for a period of 5years and 6 months commencing on the 1st September 2004.

Rent was agreed at monthly rate of Ksh 10,000 payable on or before the 5th day of each subsequent month.

In the event of termination either party was to give three months’ notice.

The plaintiff took possession of the premises and set up a general shop.

On the 7th of July she had taken some stock out of the shop to her home. On 9th July 2006, the plaintiff came to open her shop only to find that she had been evicted, and the shop was locked. The remainder of her shop goods had been removed to an unknown place. Efforts to re -enter the shop never bore fruits as orders to the defendant landlady went un obeyed.

According to the defendant appellant, she had leased the shop to the husband of the plaintiff respondent one Samwel Maina. That the respondent started running the shop until the day she removed her stock. That it was after the respondent had removed her stock that the appellant had gone and locked the premises and taken it over. She conceded that the respondent had paid rent for July 2006, but she the land lady took over the premises, and in violation of the lease agreement, and rented the same to her brother against court orders to re-open the same and hand over to the respondent.

The defendant appellant called two witnesses during the trial. A police officer Cpl Anderson Gitaria no. 48741 who was attached to Nyeri police station who testified that he was present when the defendant appellant broke into the shop and did an inventory of what was inside the shop.

The other witness Mathew Mugambi who testified that he was the defendant appellant’s watch man at the material time at the said shop. He testified that the plaintiff respondent ‘mama George’ came in on 8th July 2006 and removed things from the shop, except ‘three shelves’. On 9th she came back with a motor vehicle and some things which she wanted to put in the shop. The defendant appellant had locked the shop with her own padlock. Nancy wanted to break into the shop and enter and keep her stock inside on the ground that she had paid rents, but this witness raised the alarm by blowing his whistle. She left.

It is noteworthy that the matter was partly heard by the Hon. E Makori SPM and finalized by Hon W. Juma CM.

In her judgment she found that the plaintiff had proved her case:

That the defendant had breached their contract by premature termination of the lease agreement, and that she had suffered loss of business. She awarded general damages of Ksh 300,000. plus, costs and interest.

The defendant was aggrieved by the judgement and filed this appeal.

The judgment is attacked by six grounds of facts and law; that she failed to apprehend the substance of the plaintiff’s and defendant’s cases hence arriving at the wrong conclusion; awarded general damages, an award not maintainable in law, failing to appreciate that the plaintiff had constructively vacated the premises and was not evicted by the defendant, that this was a controlled tenancy and the magistrate had no jurisdiction, that there was no evidence to support the award of damages.

Each counsel filed written submissions and highlighted the same.

The issues are:

1. Whether this was a controlled tenancy?

2. Whether the respondent had vacated the premises or was evicted by the appellant?

3. Whether the general damages awarded are maintainable in law?

Was this a controlled tenancy?

I note from the lower court’s record that this issue never arose at all in the lower court proceedings. It is trite that a court cannot by any means, clothe itself with jurisdiction it does not have. I note however that no objection was raised to the magistrate’s jurisdiction either in the defence or submissions filed by the defendant. Be that as it may, it was submitted by counsel for the appellant that the Magistrate’s court did not have jurisdiction to hear and determine the issue because the tenancy in question was a controlled tenancy, and the matter ought to have been heard and determined by the tribunal under Cap 301 of the Laws of Kenya.

Under Cap 301 a “controlled tenancy” means a tenancy of a shop, hotel or catering establishment—

(a) which has not been reduced into writing; or

(b) which has been reduced into writing and which—

(i) is for a period not exceeding five years; or

(ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or

(iii)relates to premises of a class specified under subsection (2) of this section: (emphasis added)

The lease agreement in this case was in writing, was for a period of 5years and 6 months. It does not contain the termination clause of ‘within 5 years’ from date of commencement but gives each party the leeway to terminate through a 3 months’ notice. Hence the manner in which it was drawn was clearly intended to remove it from the realm of controlled tenancies as provided for under section 12 of Cap 301. To that end the case of Nyals (Kenya) Limited vs. United Housing Estate Limited [1995] eKLR is distinguishable. I find that the magistrate’s court had jurisdiction.

Who evicted who?

It is not in dispute that the plaintiff removed some of her goods from the shop on the 7th July 2006. It is also not in dispute that the defendant came in on the 8th and double- padlocked the shop. The defendant’s witness, one Mugambi testified that the plaintiff did indeed come with a motor vehicle loaded with goods and wanted to enter the shop on the 9th July 2006. The double padlocking was a hindrance. He thwarted her attempts to break in. She came to court and obtained orders to be put her back into possession. The defendant refused to obey those orders and instead put her brother in occupation of the premises.

The lease agreement spoke about three months’ notice for termination by either side.

The plaintiff had paid rent for July 2006. She had not given notice. Allegations that she intended to sublet the premises to another party contrary to lease agreement were not substantiated by any evidence. So where was the ground for the defendant to draw constructive vacation of the property? I find none whatsoever. Even if the plaintiff had removed all her shop goods from the premises, she was still entitled to occupy the shop for the period of July, for which the defendant had received and was holding rent, and, to a notice to vacate. The defendant did not respect either of those. The speed at which the defendant rushed to double padlock the shop is obviously suspect, and was uncalled for. The plaintiff had not given notice and was not in arrears of rent. The defendant was required to give three months’ notice as well. The argument that the plaintiff had constructively vacated the shop is untenable. By double padlocking the shop when she had been paid rent for that same month, the defendant breached the contract between her and the plaintiff.

Are General damages awardable for breach of contract?

In the judgment the learned magistrate correctly declined to grant special damages because though they were pleaded they were not specifically proven. That is supported by the case of Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] eKLR where I also found the arguments for and against the award of general damages fr breach of contract. The court said:

On the second issue, the appellant conceded that whereas the general legal principle is that courts do not normally award damages for breach of contract, there are exceptions such as when the conduct of the respondent is shown to be oppressive, high handed, outrageous, insolent or vindictive. In support of this proposition, the appellant relied on the Nigerian case of Marine Management Association & Another vs National Maritime Authority(2012) 18 NWLR 504.

The respondent on the other hand maintained that there cannot be any award of general damages for breach of contract and placed reliance on the following authorities; Provincial Insurance Company EA Ltd v. Mordekai MwangiNandwa (supra), andJoseph Ungadi Kodera vs Ebby Kangisha Kavai, KSM C. A.No. 239 of 1997 (ur)

In this case the defendant acted in a manner that be placed her in the exceptions to the rule against the award of general damages for breach of contract; actions described as ‘oppressive, high handed, outrageous, insolent or vindictive’. The evidence on record shows that defendant/appellant, without any provocation double padlocked the plaintiff’s shop when she had already received the rent for that month. She refused to comply with court orders to re-open the shop, she put in a new tenant without giving the plaintiff the requisite notice. That was high handed, insolent, vindictive, outrageous and oppressive. In my humble view the trial magistrate exercised her discretion properly in finding for an award of general damages for breach of contract.

I have analysed and reevaluated the evidence. I have perused the authorities, and considered the submissions. I find and hold that that the appeal has no merit and must fail. The same is dismissed with costs to the respondent.

Dated, delivered and signed at Nyeri this 25th day of May 2018

Mumbua T. Matheka

Judge

In the presence of:

Court Assistant: Mr. Atelu

Counsel for appellant:

Counsel for respondent: