A judge has declared that a raid on a nightclub over alleged rent arrears was illegal.
What you need to know:
- According to Mr Kung’u the eviction was unlawful because there was no notice.
Mr Kung’u and Grace Nyambura, the administrators of the estate had sought damages for loss of business, disturbance for interruptions, and loss of profits.
It was claimed that the auctioneers were enforcing an order from a chief magistrate for distress of rent amounting to Sh950,000.
At about 7 am on September 4, 2015, a mob escorted by armed police officers raided Monte Carlo Club, an entertainment spot on Nairobi’s Kenneth Matiba Road (then Accra Road), which was highly popular with reggae music lovers.
Dangling a purported eviction order from a magistrate court, raiders who also included officials of an auctioneer firm forced their way into the club and chased away staff.
A worker who tried to resist the eviction was arrested as auctioneers carted away all items in the club including pool tables, drinks tables, TV decoders, crates of beer, and assorted spirits. They also destroyed partitions and furniture in the process.
Distressed staff placed a call to Kagiri Kung’u, an administrator of the estate of the late Nakuru tycoon Stephen Kung’u Kagiri who was the proprietor of Kunste Hotel in Nakuru as well as Monte Carlo Club, and informed him about the raid over alleged rent arrears.
Later that evening, Mr Kung’u visited the entertainment spot within Reata House to assess the damage—sparking off a suit that saw the owner of the building, English Press Properties Limited reprimanded by a court last week and ordered to make a symbolic Sh720,000 in compensation for the illegal and forceful eviction of Monte Carlo Club.
According to Mr Kung’u the eviction was unlawful because there was no notice and it happened amid pending court cases, over the lease of the premises.
The administrator informed the court that he discovered that as the eviction was going on, the property owners started and accepted on the same day, rent plus a deposit of Sh1.19 million from a new tenant. He said this was an indication of a premeditated scheme to evict them and ensure there was no moving back to the premises.
In a judgment, Environment and Land Court Judge Anne Omollo agreed that the eviction was unlawful and the management should pay for the damages.
“From the evidence tendered, and being guided by the provisions of the law, it is my opinion and I so hold that the attempted eviction of the plaintiff from the suit premises was illegal and unlawful,” the judge said.
The judge said the evidence adduced before her confirmed that there were no rent arrears as alleged when the club was raided and there was no court order giving English Press Properties Ltd authority to take back the space.
Mr Kung’u and Grace Nyambura, the administrators of the estate had sought damages for loss of business, disturbance for interruptions, and loss of profits.
Other than reinstatement to the building, the two administrators sought the return of items that were carted away and were never returned.
Evidence tabled before the court showed that the club has been a tenant since 1994. The lease expired in 1999 converting the tenancy to a protected tenant at a monthly rent plus VAT of Sh69,600.
The court heard that since 2015, the owner tried to alter the terms of tenancy, illegally increase rent, and or terminate the tenancy forcing the parties to head to the Business premises rent tribunal.
On the fateful day, the property management through its agents accompanied by police officers made forcibly entry into the building and ordered everybody out.
It was claimed that the auctioneers were enforcing an order from a chief magistrate for distress of rent amounting to Sh950,000.
In the process, they carried away their goods of trade, furniture, fittings, electronics, and a music system belonging to Mr Charles Estika Oyugi of King Lion Sounds, a musician hired to provide entertainment.
Raiders also demolished internal partitions and the kitchen, then locked the premises.
Mr Kung'u said his advocate obtained a copy of the proclamation notice which had been issued on August 31, 2015, before any rent had accrued.
He maintained that they were not served with any court order or notified of any application filed.
Mr Kung’u asked the court to compel the management and the auctioneer to return all the goods of trade carried from the premises. He added that they incurred a cost of Sh12,000 to carry the said goods back to their premises and were compelled to pay the auctioneers Sh30,000.
The management and the auctioneer denied that they evicted the tenant unlawfully, maintaining that they lawfully entered the premises using a court order to justifiably distrain for rent, and found a ‘stranger’ occupying the premises, ostensibly claiming to have sub-let the entire space.
The management submitted that the administrators did not have the locus and capacity to sue in the tenancy as the tenancy was terminated upon the death of Mr Kagiri.
Mr Dennis Nyabate Nyachio, the property manager said that due to the said tenant’s non-payment or irregular payment of rent, the company moved in to enforce its right in law.
He further claimed that the family wrangling over Mr Kagiri’s estate resulted in the eviction of the family from the occupation, possession, and management of the suit premises.
Mr Nyachio added that over time, the tenant stopped paying rent and the management justifiably retained the services of the auctioneer to investigate the issue of abandonment of the premises by the Club.
He said the club cannot seek reinstatement to the premises because they were not in possession.
The judge rejected the submission stating that the premises were being used for business and the business as a going concern formed part of the assets of the deceased estate.
“The 1st Defendant (property management) has not submitted on the lawfulness or otherwise of the eviction exercise but from their witness account, they were evicting a stranger who was found in the suit premises. However, the 1st Defendant has not provided any legal basis for evicting even the so-called stranger,” the judge said.
The judge said Mr Kung'u demonstrated that they were up to date with the rent payments by producing copies of cheques used to pay the monthly rent.
Besides the date appearing on the cheques, there were handwritten notes on the copies stating the month for which the rent was being paid, the judge said.
The judge awarded the club punitive damages of Sh500,000 plus another Sh720,000 for general damages. The amount would have been higher had the administrators tabled books of accounts to support the losses suffered.
“In my view, in the absence of books of accounts to guide the court in assessing loss of business, I hold that payment of one year’s rent at the rate of what the plaintiff was paying would amount to sufficient compensation for damages for loss of profits,” the judge said.
