The owner of Lavington Mall has been allowed to evict a top club associated with prominent Rwandan businessman, Barry Ndengeyingoma, over Sh39 million rent arrears.
Justice David Mugo allowed Lavington Shopping Complex Ltd to evict the investor's two entertainment joints from the suit premises over a debt of Sh39,058,386.
The ultra-modern entertainment facilities are known as ‘Gossip Ultra Lounge’ and ‘Dejavu ‘Café Fusion Resto Lounge. They 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 tenant had rent arrears, service charge and electricity as at March 2021.
During the hearing, the investment company told the court the arrears had accumulated to Sh57.9 million by June 30 after the entertainment joints consistently defaulted in payments.
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 arrears of rent, service charge and electricity charges as at the hearing date.
"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," said Justice Mugo.
It said Mr Ndengeyingoma and Samine Fnine as guarantors in the lease for payment of rent are liable for the failure/default by the company for the amounts due and owing.
The court ruled that as guarantors, they had also agreed to be personally liable to the landlord for breaches by the Bconcept Ltd of its obligations.
