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High Court Faults Nairobi Landlords for Illegal Eviction, Awards Tenant KSh300,000
A Nairobi landlord had every right to end a tenancy.
What he did not have, the High Court has now ruled, was the right to force his tenant out through what amounted to an illegal eviction disguised as rent recovery.
In a judgement that sharply rebukes self-help evictions, the High Court found that the owners of a Westlands apartment unlawfully distressed and constructively evicted tenant Saroj K. Shah, even after properly terminating her lease.
Yet, in a dramatic twist, the court awarded her only KSh300,000 in nominal damages, rejecting her massive KSh66.7 million compensation claim because it had not been properly pleaded in court.
Justice Janet Mulwa’s decision closes a legal battle that has wound through multiple courts since 2011 while reinforcing a principle that landlords across Kenya ignore at their peril: ending a tenancy does not permit taking the law into one’s own hands.
Lease Ends
The dispute centred on Flat No. 5 along Mogotio Road in Westlands, where Shah lived under a one-year tenancy beginning in March 2010.
The lease contained an automatic renewal clause, provided rent increased by five per cent. It also allowed either party to terminate the agreement by issuing two months’ written notice.
The landlords, Naran Mani Patel and his son Kantilal Naran Manji, exercised that option on December 31, 2010, informing Shah that the tenancy would not continue beyond February 2011.
The court ultimately agreed that the notice was valid and effectively ended the tenancy.
That finding, however, did not end the matter.
Instead, it marked the point where the landlords’ legal footing began to crumble.
Turning Point
According to evidence accepted by the court, Shah repeatedly attempted to pay rent after receiving the termination notice.
Through her advocate, she forwarded six months’ advance rent and later tendered another cheque for KSh252,000.
The landlords refused to bank either payment, insisting the tenancy had already ended.
Yet despite rejecting the money, they simultaneously pursued her for alleged rent arrears.
Justice Mulwa found that contradiction impossible to ignore.
“It appears the Plaintiff had every intention of fulfilling the said obligation,” the judge observed.
“However, the 1st and 2nd defendant had no interest in continuing the tenancy, hence declining to accept the forwarded cheques.”
The landlords then turned to the Business Premises Rent Tribunal (BPRT), obtaining orders authorising distress for rent. Those proceedings would later prove fatal to their case.
Earlier High Court proceedings had already determined that the tribunal lacked jurisdiction because the property was residential rather than commercial.
Consequently, every order flowing from the BPRT proceedings was legally defective.
Nevertheless, auctioneers moved in.
Household goods were seized. Security guards were stationed at the apartment. Shah was locked out.
The confrontation stretched over several months and culminated in another distress exercise.
Court Rebuke
during December 2011.
Justice Mulwa concluded that what unfolded was not merely rent recovery.
It was, in substance, an unlawful eviction.
“The totality of the Defendants’ actions constituted what was unlawful distress and constructive eviction,” the judge ruled, adding that the landlords should instead have sought eviction orders from a court with proper jurisdiction.
The ruling echoes a long-standing warning by Kenyan courts against landlords bypassing judicial processes.
Quoting the landmark Gusii Mwalimu Investment Co. Ltd v Mwalimu Hotel Kisii Ltd decision, Justice Mulwa reiterated that landlords cannot simply walk into premises and recover possession without court authority.
“A court of law cannot allow such state of affairs whereby the law of the jungle takes over,” the earlier Court of Appeal decision famously declared.
For Shah, however, proving liability proved easier than proving loss.
She alleged that jewellery, luxury watches, cash, furniture, electronics and numerous household items disappeared during the two distress operations.
Professional valuers later placed the total loss at KSh66,698,781.50.
But Kenyan civil procedure demands more than valuation reports.
Special damages must be specifically pleaded and then strictly proved.
Justice Mulwa found that Shah’s plaint merely stated that special damages would “be ascertained”. The precise figure only emerged years later after expert reports were commissioned in 2019.
That, the court held, was legally insufficient.
“Why the Plaintiff opted to plead, ‘special damages to be ascertained’ is beyond me,” Justice Mulwa remarked before rejecting the entire KSh66.7 million claim.
The judge also dismissed requests for aggravated damages, return of the seized property and an injunction, reasoning that the tenancy had long expired and the goods had almost certainly been disposed of.
Bittersweet Victory
Still, the court declined to let the landlords escape entirely.
Although Shah failed to establish quantifiable financial loss, Justice Mulwa held that her legal rights had unquestionably been violated.
That justified an award of nominal damages.
The court ordered the defendants, jointly and severally, to pay Shah KSh300,000, together with interest from the date of judgement and the costs of the suit.
Their counterclaim seeking KSh940,000 for rent arrears, legal fees and auctioneer’s charges was dismissed in its entirety.
In perhaps the judgement’s most powerful observation, the court invoked the centuries-old equitable principle that no person should profit from wrongdoing.
The landlords had refused rent, engineered the alleged arrears and then relied upon those arrears to justify distress proceedings.
That strategy ultimately collapsed.
Fifteen years after the first locks were changed and household goods disappeared, the case ends with an important reminder for both landlords and tenants.
A lease may expire. A tenancy may lawfully end. But eviction, however inevitable, must still follow the law.
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