The High Court has allowed the owner of Nairobi’s Lavington Mall to evict a top club associated with prominent Rwandan businessman, Barry Ndengeyingoma over rent arrears of Sh39 million.
Lavington Shopping Complex Ltd has been allowed by Justice David Mugo to evict the investor’s two entertainment joints from the premises over a debt of Sh39,058,386. The entertainment facilities are known as Gossip Ultra Lounge and Dejavu Café Fusion Resto Lounge and are owned by BConcept Ltd.
“An eviction order is issued in favour of the Lavington Mall against BConcept Ltd in respect of the suit premises – the 5th floor of Lavington Mall in Lavington, Nairobi,” said the judge. He also awarded the landlord interest on the sums owed from March 2021 when the suit was filed.
In seeking the eviction order, the mall owner told the court that the outstanding arrears also included service charge and electricity as at March 2021.
During the hearing, the company said the arrears had accumulated to Sh57,958,100 as at June 30.
However, Justice Mugo did not award it the claim of Sh57 million since it failed to amend the court papers to substitute the initial figure of Sh39 million with the new accumulated arrears.
“It is a settled principle of law that parties are bound by their pleadings. The court too is bound by the pleadings of the parties. The plaintiff by attempting to claim the higher figure without having made an amendment to its plaint is seeking to ‘travel beyond its pleadings’. That is not allowable,” stated Justice Mugo.
The investment company said that BConcept Ltd had become a “habitual defaulter” in payment of rent and other dues, adding that Mr Ndengeyingoma and Samine Fnine, as guarantors on the lease, are liable for the failure by the company to pay the arrears.
The court concurred and ruled that as guarantors, they had also agreed to be personally liable to the landlord for any breach by BConcept.
“Ndengeyingoma and Fnine guaranteed performance of the tenancy terms and conditions by BConcept. They are not only liable for the arrears of rent but for any other and further consequential losses, including the costs of the suit,” said Justice Mugo.
The company, Mr Ndengeyingoma and Ms Fnine did not enter an appearance or file a statement of defence to the suit.
The landlord’s witnesses, Ms Irene Nyakio Kinuthia (a director of Shopping Complex) and Mr Samuel Mwangi (a representative of the property manager), said that the leases had since lapsed but BConcept had refused to vacate despite notices to do so.
They said the tenant had constantly been in default of rent, service charge, promotional levy and electricity charges.
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