REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E210 OF 2023
EENS LIMITED .....................................................................................APPELLANT
VERSUS
AFRICA METAL WORKS LIMITED.....................................................RESPONDENT
JUDGEMENT
1. The Appellant then Plaintiff instituted suit against the Respondent then Defendant claiming for a sum of Kshs.256,011/= being a refund of the dishonoured cheque, the commission on the dishonoured cheque and unpaid electricity bill as well as costs and interest.
2. The Appellant’s case is that on 01/02/2016 it entered into a lease agreement over a Go-down No.16 on LR 12715/217 LR 44412 in Athi River. On or around January 2020, the Respondent requested to vacate the premises and issued a post-dated cheque for the sum of Kshs.1,624,488/=. The last cheque for the sum of Kshs.216,446/=was returned unpaid on advice that it had been recalled by the Respondent. The Appellant through its Accountant, stated that there was a meeting held on 28/01/2020 attended by directors of both parties and the parties agreed to terminate the lease. The Respondent agreed to settle 3 months’ rent and arrears. The Appellant surrendered the rent deposit and deposited the post-dated cheques as security. The Appellant sought for a refund of the electricity bill of Kshs.38,365.01/=.
3. The Respondent entered appearance and filed a Statement of Defence and Counterclaim. The Respondent denied the contents of the Appellant’s claim and invited the Appellant to strict proof. The Respondent Counterclaimed for a sum of Kshs.1,384.042/= being the refund for rent for the month of March and April 2020 and the deposit of the sum of Kshs.800,000/= paid on 15/01/2016. The Respondent through one Ahmed Abdi testified that they agreed with the Appellant was to pay all the outstanding rent arrears. He further stated that he had paid the electricity bill and the sum sought is for the bill after they had left the premises and therefore not payable. He stated that there is no justification for the surrender of the sum paid as deposit. He urged the court dismiss the Appellant’s claim and allow the counterclaim.
4. Upon considering the Parties’ pleadings and evidence tendered before court, the Trial Magistrate delivered his Judgment dated 01/08/2023 where the Appellant (being the Plaintiff) was ordered to refund to the Respondent (Defendant) a sum of Kshs.582.354/= after the Appellant's claim was partially allowed in the sum of Kshs.216 4461= and Kshs.1 200/= commission and the Respondent/Defendant's Counter claim of Kshs.800,000/= was allowed less the above claims by the Appellant/Plaintiff. The Court disallowed the Plaintiff's claim of Kshs.38, 365.01/= being electricity Bill and ordered each party to bear their own costs.
5. Being dissatisfied with part of the Trial Magistrate’s Judgement above, the Appellant filed a Memorandum of Appeal herein on 31/08/23 challenging the part judgement.
6. The Appellant appeals part of the judgment delivered on 1st August 2023 by the Trial Magistrate in Mavoko CMCC E1059 of 2022 and avers that the Learned Magistrate erred in finding that the Respondent’s Counterclaim partially succeeded by awarding it a refund of Kshs.582,354 from the deposit of Kshs.800,000, despite the Respondent’s premature and unilateral exit from a tenancy governed by a valid Letter of Offer and the express terms on forfeiture of the deposit.
7. The Appellant further challenges the court’s failure to award the outstanding electricity bill of Kshs.38,365.01 despite uncontroverted evidence.
8. The Appellant also filed a Record of Appeal dated 04/07/2024 and a Supplementary Record of Appeal dated 03/03/2025.
9. The appeal was canvassed through written submissions.
Appellant’s Submissions
10. The Appellant framed two key issues for determination in its submissions, namely;
i. Whether this court is empowered to re-evaluate the trial court’s evidence.
ii. Whether the Respondent was in breach of the lease.
11. On the first issue as to whether this court is empowered to re-evaluate the trial court’s evidence. The Appellant submitted that this being a first appeal, this Court is required to re-evaluate and re-analyse the evidence presented before the trial court and to draw its own independent conclusions.
12. That this is not merely a procedural exercise but is a substantive legal obligation grounded in binding precedent and designed to prevent miscarriage of justice by lower courts. This has been the position since time immemorial as was held in Selle & Another v Associated Motor Boat Company Ltd & Others, [1968] EA 123 a precedent that has been relied upon first appellate courts time and time again. In Nawila Nassir v Scala Enterprises Limited [2021] eKLR, the learned judge followed suit and stated that;
“This being a first appeal to the High Court, it is an appeal on both facts and the law. As the first appellate court, I am duty bound to revisit and exhaustively re-evaluate the evidence presented before the trial court to arrive at my own independent conclusions but bearing in mind that unlike the trial court, I did not have the advantage of seeing and hearing the witnesses and give due allowance for that disadvantage.”
13. The Appellant submitted that despite courts being slow to interfere with lower court decisions, nothing precludes this court from interfering in a situation where the trial court failed to apply the law properly, ignored relevant evidence and misapprehended the legal effects of proven facts. Reliance was placed on Peters v Sunday Post Limited [1958] EA 424 where it was stated that;
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witness”.
........But the jurisdiction “(to review the evidence) should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion.”
14. It was submitted that this Court has both the authority and the duty to put into scrutiny the lower court’s finding and the court was invited to follow in the footsteps of the learned judges in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) held that;
“This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions...”
15. The Appellant urged the Court to discharge its appellate function by fully re-evaluating the factual and legal matrix, correcting the trial court’s misapprehension of the law, and arriving at a just and reasoned decision grounded in the evidence and governing contractual terms.
16. On the second issue on whether the Respondent was in breach of the lease agreement, the Appellant submitted that the Letter of Offer dated 15th January 2016 constituted the governing agreement between the parties. It expressly provided at Clause 3 that the Kshs.800,000 deposit “shall be forfeited to the Landlord in the event of breach and failure to remedy within a reasonable time.” It was submitted that there is no dispute that the Respondent vacated the premises prematurely and failed to pay the full rent due for January to April 2020. This breach was unremedied, satisfying the threshold for forfeiture.
17. The Appellant submitted that the trial court misapprehended the scope and effect of this clause. The law is clear that where a deposit is contractually forfeitable upon breach, the court must enforce the clause as written, unless the forfeiture is oppressive or unconscionable. Reference was made to the case of Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR), where the Supreme Court stated that;
“The security deposit is a crucial component in commercial leases, serving as financial safeguard for the landlord against potential losses or damages associated with tenant occupancy. Conversely, for tenants, the security deposit is a refundable asset, incentivizing them to maintain the premises and adhere to lease terms to recover the amount upon lease termination. Accordingly, we must give it due regard in crafting a remedy which balances the interests of both parties.”
18. Also cited was the case of Derrick James Kimani v Kionga Investments Co. & Another [2021] eKLR, where the Tribunal observed:
“The tenant shall be entitled to a refund of Kshs.500,000/- upon termination of the tenancy subject to restoration of the demised premises back into its initial state in terms of Clause 3 of the tenancy agreement dated 20th October 2015 failing which the Landlord shall use the same to do repairs and any balance arising therefrom shall be paid to the tenant.”
19. That in this case, the Respondent did not dispute vacating before lease expiry, and it admitted that it issued post-dated cheques as part of negotiations after giving short notice. The trial court ignored this context and ordered a refund without a finding that the breach was remedied, or that the forfeiture was disproportionate to the harm suffered. It thereby contradicted Clause 3 of the Letter of Offer and the legal position in Nginyo Investments Ltd v Mobile Pay Ltd [2020] eKLR, where the court only allowed a refund after expressly confirming no breach had occurred and the premises had been reinstated.
20. It was submitted that the Appellant had to incur costs in restoring the premises after the Respondent vacated. Clause 17 of the Letter of Offer permitted the Appellant to apply the deposit towards restoring the premises. The Respondent did not demonstrate that they left the go-down in the condition in which it was leased.
21. The Appellant cited the case of Nairobi ELC Appeal 45 of 2019, Halfan Mkiwa v Professor Philip Nyinguro, where it was stated that:
“Rent deposits are ordinarily paid as security to the Landlord to be used in case of arrears or for repairs for damage to the premises. It is usually refundable provided the tenant settles all outstanding bills, rent arrears and leaves the premises in the condition it was in at the time he moved in.”
22. The Appellant contends that the learned trial magistrate failed to appreciate the operation of Clauses 3 and 17 of the Letter of Offer. In effect, the court rewrote the contract by refunding the deposit despite the tenant’s admitted breach and without considering the landlord’s rights to restoration. The Appellant invites the court to follow the guiding in Kwanza Estates (supra) and Haifan Mkiwa (supra).
23. It was further submitted the Appellant led unchallenged evidence that the Respondent left an unpaid electricity bill of Kshs.38,365.01, which Kenya Power & Lighting Company Limited was demanding from the Appellant as the registered tenant. The bill relates to usage during the Respondent’s occupation. The trial court erroneously declined to award this amount, stating the Respondent had “testified he cleared” the bill despite the absence of any documentary proof and the continued existence of the demand from KPLC.
24. The law imposes a clear obligation on a tenant to settle utility charges arising during occupation and as the Haifan (supra) establishes, the deposit is meant to cover these liabilities if the tenant does not settle them. The Respondent failed to demonstrate that it cleared the electricity bill before vacating.
25. Therefore, the court erred in declining to award the Appellant this sum. The Appellant submits that this amount should be awarded as a distinct and recoverable debt or, in the alternative, set off against the deposit. The trial court accepted the Respondent’s argument that the cheques issued at the end of January 2020 were part of a negotiated exit, and therefore operated as full settlement. This reasoning is legally flawed and overlooks the doctrine of duress and absence of accord and satisfaction.
26. The Respondent testified that it issued the post-dated cheques under pressure and due to threats, that their machines would be detained. In D & C Builders Ltd v Rees [1965] EWCA Civ 3, Lord Denning MR famously rejected a similar defence of settlement.
27. The Appellant submitted that a cheque for a lesser sum does not discharge a greater debt unless freely negotiated, and in this case, the cheques were not issued to settle all disputes, but merely to clear pending arrears so that the Respondent could vacate without further liabilities. That even if the parties intended the cheques to form a partial settlement, the fact that one of them was dishonoured (i.e., Kshs.216,446) invalidated any such accord. A party cannot claim protection from liabilities under a settlement that it itself failed to honour. The Appellant submitted that the dishonoured cheque demonstrates the absence of finality and validates it’s continued right to claim arrears and expenses arising from the tenancy.
28. The Appellant urged this court to allow the appeal and;
i. Set aside the lower court’s finding that the Respondent’s counterclaim partially succeeded.
ii. Order that the entire Kshs.800,000 deposit be forfeited to the Appellant pursuant to Clause 3 of the Letter of Offer.
iii. Award the Appellant the sum of Kshs.38,365.01 being unpaid electricity charges incurred during the tenancy.
iv. Award costs of the appeal and the suit below to the Appellant.
v. Grant any other or further relief as this Honourable Court may deem fit in the interests of justice.
Respondent’s submissions.
29. The Respondent submitted that they were Tenants in Go-down No. 6 at L.R. No. 12715/215 (Syokimau) from 01/02/2016 until the Respondent by a Notice dated 17/01/2020 notified the Appellant of their intention to Vacate the demised premises on 28/02/2020. The Respondent and the Appellant had only executed a Letter of Offer dated 15/01/2016 and No Lease was ever prepared, Concluded, Signed, Attested, Stamped and Registered as by Law required. Consequently, the letter of offer can only be interpreted to provide for a month-to-Month Tenancy Terminable by a One (1) Month Notice as by Law provided.
30. Before issuing the Termination Notice dated 17/01/2020 to vacate the premises on 28/02/2020, which Notice was more than one (1) month, the Respondent paid all outstanding Rent from July 2019 to December 2019 through Three (3) Cheques Nos. 00096, 97 & 98 dated 17/01/2020 for Kshs.325,464.40/= each totalling Kshs.2 476 339.20/= and requested that the Deposit of Kshs.800 000/= paid on 15/01/2016 be utilized to cover for the January & February 2020 Rent. The Notice explained the business struggles that the Respondent's business was undergoing leading to closure of operations and the need to remove the heavy machinery and equipment from the Leased Premises for storage which was going to take some time hence the Notice for almost 42 days.
31. The Respondent submitted that under Ground 1 of the Appellant's Memorandum of Appeal, the Appellant averred that the Learned Trial Magistrate erred in law and in fact in failing to record the proceedings and submissions of the Appellant in regards to the Deposit. The Respondent referred the Court to Paragraph 5 of the Judgment of the trial Court dated 01/08/2023 where the Honourable Magistrate expressly stated inter alia that:
"l have considered the pleadings, the evidence, the respective written submissions and the law."
32. The Respondent further submitted that the certified copy of the typed proceedings at pages 97-102 of the Appellant's Record of Appeal clearly indicates that the Trial Magistrate recorded all the proceedings before the trial Court and the proceedings recorded on 27/06/2023 and 25/07/2023 clearly indicate that parties were given enough time by the trial court to file their respective written submissions and a Judgment date was given after the trial court had confirmed that all the parties had filed their written submissions. The Appellant's allegation that the Trial Court failed to record the proceedings and submissions of the Appellant in regards to the Deposit cannot therefore be entertained by this Court. The final Judgment and Orders also clearly make reference to the Deposit of Kshs.800, 000/= as contained in the Counterclaim.
33. The Respondent submitted that the Appellant did not address the issue of the Rent Deposit in their Plaint filed in the trial Court although they were fully aware of the Demand letter to refund the Deposit as at 10/03/2020 immediately after the Respondent vacated the premises on 28/02/2020 and only raised the issue of forfeiture under Clause 3 of the letter of offer after being served with the Counterclaim dated 24/01/2023. There cannot be any forfeiture where Notice has been served and the Tenant has complied with all the Terms of the Lease/Tenancy unless there is any proof of damages and repairs conducted on the Premises at the time of vacation. None was pleaded and proved by the Appellant.
34. The Respondent submitted that in the meeting held between the Respondent's Directors and the Plaintiff on 28/01/2020, the Appellant declined the Respondent's request to use the Deposit of Kshs.800 000/= to cover for the January & February 2020 rent and insisted that the Respondent must pay January. February, March & April 2020 rent totalling to Kshs.1,624,488/= after deducting withholding tax and proceeded to issue an Invoice on 01/02/2020 and the ETR Receipt with stern warning that without the payment, the Respondent will not be permitted to start removing their machineries and equipment from the Go-down in February 2020. This was high handed, unreasonable, forceful, extortionist, and unconscionable and the Respondent was left with no choice but to comply under Duress. The invoice for Four (4) Months had no basis and defeats the Appellant's contention that Rent was payable Quarterly because One Quarter of a year is only Three (3) months and the Respondent's business had collapsed and Rent had not been paid since July 2019 hence the Notice to Vacate the Premises dated 17/01/2020.
35. That the Appellant further refused to refund the Deposit of Kshs.800,000/= paid by the Respondent on 15/01/2016 despite the fact that the Respondent took the Go-down in January 2016 in a Dilapidated state and the Respondents are the ones who painted and repaired the premises before moving in their Machineries and Equipment to the premises as was admitted by the Appellant in Paragraph 5 of the Plaint filed in the Trial Court. This was a clear demonstration of good will on the part of the Respondent from the inception of the Tenancy arrangement.
36. That in order to avoid confrontations with the Appellant's guards at the Go-Down, and for ease of movement of its machines and Equipment out of the premises, the Respondent was forced to issue the Appellant with Two (2) Cheques Nos. 000112 & 113 for Kshs.704 021/= each dated 06/02/2020 and a Postdated Cheque dated 30/05/2020 for Kshs.216,446/= all totalling Kshs.1,624,488/= to cover the Rent for January & February 2020 and the unlawfully demanded and Invoiced Rents for March & April 2020 whereas the Respondent was to vacate the premises on 28/02/2020 pursuant to the Notice dated 17/01/2020 and immediately after the Respondent vacated the Premises on 28/02/2020, the Respondent's Advocates wrote to the Appellant on 10/03/2020 demanding Refund of the Deposit and stopping the Post-dated Cheque for 30/05/2020.
37. It was submitted that since this payment was made under duress and through coercion, extortion and undue influence, the Respondent instructed their Advocates as soon as they vacated the premises on 28/02/2020 to write a demand letter to the Appellant and stopped the Post-dated Cheque dated 30/05/2020 for Kshs.216 446/=. The Respondent's demand letter to the Appellant dated 10/03/2020 clearly indicated that the Postdated Cheque for Kshs.216 446/= had been stopped and Demanded a Refund of Kshs.584,042/= (Being the March & April 2020 Rent) paid together with a refund of the Deposit of Kshs.800,000/= making a total of Kshs.1,384,042/=.
38. That despite the Respondent having found the premises in a dilapidated state and outfitted, painted and customized the premises for use as was admitted by the Appellant in Paragraph 5 of the Plaint filed in the Trial Court, the Respondent vacated the premises on 28/02/2020 in a good and tenantable state and the Appellant refused to refund the deposit of Kshs.800,000/= as demanded on 10/03/2020 and never provided any receipt or proof of any repairs done on the premises after the Respondent vacated the premises to justify withholding/forfeiture of the deposit. That the Forfeiture Clause in the Letter of offer was only applicable in case of breach of the Tenancy Conditions during the Tenancy period and to rectify any default by the Respondent on the Premises. None was pleaded and proved by the Appellant.
39. The Respondent submits that the Learned Magistrate was justifiably right in finding that there was no basis of retaining the deposit used as security under Paragraph 22 of the Judgment dated 01/08/2023. That the Respondent is therefore entitled to the refund of deposit of Kshs.800,000/= having settled everything due to the Appellant as per the Judgment of the Trial Court less the sum of Kshs.216,446/= and Commission of Kshs.1,200/= leaving a balance of Kshs.582 354/= as ordered by the Trial Court.
40. The Respondent further submits that the Learned Trial Magistrate was lenient enough to order that the Appellant is entitled to the sum of Kshs.216 446/= on the unpaid Cheque which was to cover Rent for the Months of March & April 2020 whereas the Respondent had vacated the premises on 28/02/2020.
41. The Respondent submits that the mere fact that a case has been instituted by a party in Court is not a guarantee that the case will succeed in whole or in part. Cases are considered and determined on merit based on the facts, evidence and the law and it is therefore absurd for the Appellant to claim that the Learned Magistrate failed to appreciate the suit as framed in the Plaint dated 25/11/2022. That the Trial Court considered the Pleadings/Facts, the evidence produced and the law before coming to the findings.
42. The Respondent invited this Court to be guided by the case of Saul Sewe Ochienq' Nyamoqo Versus Kiios Holdinqs Ltd [2018] eKLR where Justice J.K. Serqon while considering an Appeal by a Tenant whose claim for Refund of Rent Deposit was dismissed by the Magistrate's Court held that the Appellant (Tenant) had adduced sufficient evidence that he left the premises in a tenantable condition and the Respondent (Landlord) had not tendered any evidence that the premises were left in untenantable state since they had been given prior notice before the Tenant vacated the Premises and they did not prove that they spent any money or part of the Deposit in repairing any damage left by the Tenant and consequently the Judge set aside the Orders by the Magistrate dismissing the Claim for Refund of the Deposit and allowed the suit for refund of the Deposit to the Tenant by the Landlord.
43. In conclusion, the Respondent submitted that the Appellant's Appeal is spurious, inept, frivolous and incompetent and has no merit whatsoever in law and fact and should be dismissed with costs of the appeal paid to the Respondent by the Appellant. That the Learned Trial Magistrate was right in holding that there was no basis for the Appellant to retain the deposit used as security and that the Respondent is entitled to his money having paid everything due to the Appellant.
44. That under the circumstances, it is only fair and just for the Appellant's Appeal to be dismissed with costs and the Judgment of the Trial Court delivered on 01/08/2023 be upheld in its entirety so that the Respondent can enjoy the fruits of their Judgment and Orders of the Court.
Analysis and Determination
45. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited [1968] E.A 123. (1958) E.A page 424.
46. I have perused the Record of Appeal, the Supplementary Record of Appeal and considered the Parties’ submissions on the appeal and also taken into consideration the judicial decisions cited and attached; I will proceed to consider two issues arising from the appeal namely;
i. Whether the Appellant is entitled to the security deposit of Kshs.800,000/= or any part thereof;
ii. Whether the Respondent ought to pay the electricity bill of Kshs.38,365.01/=
i. Whether the Appellant is entitled to the Kshs.800,000/= or any part thereof;
47. I have perused the Letter of Offer dated 15th January 2016 and agree with the trial court that the same constituted the governing agreement between the parties herein.
48. Clause 3 of the Letter provided that if the lease shall be terminated prior to the expiry of the lease term on account of any default on your part or if there is any default on your part during the currency of a lease then in such case the security deposit will be forfeited to the Landlord absolutely.
49. With the above Clause 3, I have to determine whether there was any default on the part of the Respondent that warrant forfeiture of the security deposit of Kshs.800,000 /= to the Appellant. On or about January 2020, the Respondent requested to vacate the premises due to business struggles that the Respondent's business was undergoing leading to closure of operations and the need to remove the heavy machinery and equipment from the Leased Premises. I am of the considered view that the reason for which the Respondent is said to have terminated the lease were due to circumstances beyond his control being financial constraints and this does not amount to any default on its part in as far as the lease herein is concerned.
50. In the Plaint dated 25th November 2022, the Appellant sought for prayers for:
a) Dishonoured cheque amount being Kshs.216,446/=
b) Commission on the unpaid cheque kshs.1,200/=
c) Unpaid electricity Bill of Kshs.38,365.01/=
d) Costs of the suit
e) Interest on a, b and c above at court rates from the dated of filing suit till payment in full
f) Any other relief as the court may deem fit to grant.
51. In a Statement of Defence and Counterclaim, the Respondent sought for prayers for :
a) The Plaintiff/Appellant suit to be dismissed with costs to the Defendant/Respondent;
b) The Plaintiff/Appellant does refund to the Defendant/ Respondent the deposit of Kshs.800,000/= paid on 15/01/2016 at the commencement of the Tenancy together with interest at court rates;
c) The costs of the Counterclaim and such further relief as the court deems just and fair to grant in the unique circumstances of the case.
52. From the evidence on record, it is not disputed that the Respondent had paid the Appellant a security deposit of Kshs.800,000/=. In requesting for an early termination of the Lease, the Respondent issued the Appellant with three post dated cheques of Kshs.704,021/=, another one for Kshs.704,021 and for Kshs.216,446/=.
53. The last cheque for the sum of Kshs.216,446/= was returned unpaid on advice that it had been recalled by the Respondent. The Appellant was charged a commission on the unpaid cheque in the sum of Kshs.1,200/=.
54. At this point I find Kshs.216,446/= and Kshs.1,200/= to be payable to the Appellant.
55. In the Plaint the Appellant did not claim for forfeiture of the Kshs.800,000/= or for any costs of restoration of the Go-down to the state in which the Respondent found it and how much this was.
56. The was no Amended Plaint that was later filed by the Appellant in that regard. It is by now well settled by precedent that parties are bound by their pleadings.
57. In Tolksdorf v Mwangi & 3 others (2025) KEELC 848 (KLR), the
court restated this principle by holding that;
“Additionally, this is an issue that was not pleaded in them Plaint dated 8th April 2022. It is trite that parties are bound by their pleadings and cannot allowed to depart from the same”.
58. I find that the trial court was right in not awarding the deposit of Kshs.800,000/= and restoration costs which were never pleaded by the Appellant.
59. As rightly found by the trial court, the Appellant was entitled to Kshs.216,446/= for rent arrears and Kshs.1,200/= for commission for unpaid cheque which was properly deducted from the deposit of Kshs.800,000/= leaving a balance of Kshs.582,354/= payable to the Respondent.
60. I find no reason to disturb the trial magistrate’s finding on the issue of deposit herein.
ii. Whether the Respondent ought to pay the electricity bill of Kshs.38,365.01/=
61. The trial magistrate declined to award the Appellant the amount of the electricity bill stating that the Respondent had already moved out of the Go-down. However, upon my re-evaluation of the evidence, I have established that the Respondent did not adduce any evidence to show that by the time he was moving out he had cleared all the outstanding electricity bills and therefore it was not supposed to pay the amount demanded by the Appellant. In the absence of any evidence to the contrary, I fi
[...truncated]
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E210 OF 2023
EENS LIMITED .....................................................................................APPELLANT
VERSUS
AFRICA METAL WORKS LIMITED.....................................................RESPONDENT
JUDGEMENT
1. The Appellant then Plaintiff instituted suit against the Respondent then Defendant claiming for a sum of Kshs.256,011/= being a refund of the dishonoured cheque, the commission on the dishonoured cheque and unpaid electricity bill as well as costs and interest.
2. The Appellant’s case is that on 01/02/2016 it entered into a lease agreement over a Go-down No.16 on LR 12715/217 LR 44412 in Athi River. On or around January 2020, the Respondent requested to vacate the premises and issued a post-dated cheque for the sum of Kshs.1,624,488/=. The last cheque for the sum of Kshs.216,446/=was returned unpaid on advice that it had been recalled by the Respondent. The Appellant through its Accountant, stated that there was a meeting held on 28/01/2020 attended by directors of both parties and the parties agreed to terminate the lease. The Respondent agreed to settle 3 months’ rent and arrears. The Appellant surrendered the rent deposit and deposited the post-dated cheques as security. The Appellant sought for a refund of the electricity bill of Kshs.38,365.01/=.
3. The Respondent entered appearance and filed a Statement of Defence and Counterclaim. The Respondent denied the contents of the Appellant’s claim and invited the Appellant to strict proof. The Respondent Counterclaimed for a sum of Kshs.1,384.042/= being the refund for rent for the month of March and April 2020 and the deposit of the sum of Kshs.800,000/= paid on 15/01/2016. The Respondent through one Ahmed Abdi testified that they agreed with the Appellant was to pay all the outstanding rent arrears. He further stated that he had paid the electricity bill and the sum sought is for the bill after they had left the premises and therefore not payable. He stated that there is no justification for the surrender of the sum paid as deposit. He urged the court dismiss the Appellant’s claim and allow the counterclaim.
4. Upon considering the Parties’ pleadings and evidence tendered before court, the Trial Magistrate delivered his Judgment dated 01/08/2023 where the Appellant (being the Plaintiff) was ordered to refund to the Respondent (Defendant) a sum of Kshs.582.354/= after the Appellant's claim was partially allowed in the sum of Kshs.216 4461= and Kshs.1 200/= commission and the Respondent/Defendant's Counter claim of Kshs.800,000/= was allowed less the above claims by the Appellant/Plaintiff. The Court disallowed the Plaintiff's claim of Kshs.38, 365.01/= being electricity Bill and ordered each party to bear their own costs.
5. Being dissatisfied with part of the Trial Magistrate’s Judgement above, the Appellant filed a Memorandum of Appeal herein on 31/08/23 challenging the part judgement.
6. The Appellant appeals part of the judgment delivered on 1st August 2023 by the Trial Magistrate in Mavoko CMCC E1059 of 2022 and avers that the Learned Magistrate erred in finding that the Respondent’s Counterclaim partially succeeded by awarding it a refund of Kshs.582,354 from the deposit of Kshs.800,000, despite the Respondent’s premature and unilateral exit from a tenancy governed by a valid Letter of Offer and the express terms on forfeiture of the deposit.
7. The Appellant further challenges the court’s failure to award the outstanding electricity bill of Kshs.38,365.01 despite uncontroverted evidence.
8. The Appellant also filed a Record of Appeal dated 04/07/2024 and a Supplementary Record of Appeal dated 03/03/2025.
9. The appeal was canvassed through written submissions.
Appellant’s Submissions
10. The Appellant framed two key issues for determination in its submissions, namely;
i. Whether this court is empowered to re-evaluate the trial court’s evidence.
ii. Whether the Respondent was in breach of the lease.
11. On the first issue as to whether this court is empowered to re-evaluate the trial court’s evidence. The Appellant submitted that this being a first appeal, this Court is required to re-evaluate and re-analyse the evidence presented before the trial court and to draw its own independent conclusions.
12. That this is not merely a procedural exercise but is a substantive legal obligation grounded in binding precedent and designed to prevent miscarriage of justice by lower courts. This has been the position since time immemorial as was held in Selle & Another v Associated Motor Boat Company Ltd & Others, [1968] EA 123 a precedent that has been relied upon first appellate courts time and time again. In Nawila Nassir v Scala Enterprises Limited [2021] eKLR, the learned judge followed suit and stated that;
“This being a first appeal to the High Court, it is an appeal on both facts and the law. As the first appellate court, I am duty bound to revisit and exhaustively re-evaluate the evidence presented before the trial court to arrive at my own independent conclusions but bearing in mind that unlike the trial court, I did not have the advantage of seeing and hearing the witnesses and give due allowance for that disadvantage.”
13. The Appellant submitted that despite courts being slow to interfere with lower court decisions, nothing precludes this court from interfering in a situation where the trial court failed to apply the law properly, ignored relevant evidence and misapprehended the legal effects of proven facts. Reliance was placed on Peters v Sunday Post Limited [1958] EA 424 where it was stated that;
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witness”.
........But the jurisdiction “(to review the evidence) should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion.”
14. It was submitted that this Court has both the authority and the duty to put into scrutiny the lower court’s finding and the court was invited to follow in the footsteps of the learned judges in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) held that;
“This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions...”
15. The Appellant urged the Court to discharge its appellate function by fully re-evaluating the factual and legal matrix, correcting the trial court’s misapprehension of the law, and arriving at a just and reasoned decision grounded in the evidence and governing contractual terms.
16. On the second issue on whether the Respondent was in breach of the lease agreement, the Appellant submitted that the Letter of Offer dated 15th January 2016 constituted the governing agreement between the parties. It expressly provided at Clause 3 that the Kshs.800,000 deposit “shall be forfeited to the Landlord in the event of breach and failure to remedy within a reasonable time.” It was submitted that there is no dispute that the Respondent vacated the premises prematurely and failed to pay the full rent due for January to April 2020. This breach was unremedied, satisfying the threshold for forfeiture.
17. The Appellant submitted that the trial court misapprehended the scope and effect of this clause. The law is clear that where a deposit is contractually forfeitable upon breach, the court must enforce the clause as written, unless the forfeiture is oppressive or unconscionable. Reference was made to the case of Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR), where the Supreme Court stated that;
“The security deposit is a crucial component in commercial leases, serving as financial safeguard for the landlord against potential losses or damages associated with tenant occupancy. Conversely, for tenants, the security deposit is a refundable asset, incentivizing them to maintain the premises and adhere to lease terms to recover the amount upon lease termination. Accordingly, we must give it due regard in crafting a remedy which balances the interests of both parties.”
18. Also cited was the case of Derrick James Kimani v Kionga Investments Co. & Another [2021] eKLR, where the Tribunal observed:
“The tenant shall be entitled to a refund of Kshs.500,000/- upon termination of the tenancy subject to restoration of the demised premises back into its initial state in terms of Clause 3 of the tenancy agreement dated 20th October 2015 failing which the Landlord shall use the same to do repairs and any balance arising therefrom shall be paid to the tenant.”
19. That in this case, the Respondent did not dispute vacating before lease expiry, and it admitted that it issued post-dated cheques as part of negotiations after giving short notice. The trial court ignored this context and ordered a refund without a finding that the breach was remedied, or that the forfeiture was disproportionate to the harm suffered. It thereby contradicted Clause 3 of the Letter of Offer and the legal position in Nginyo Investments Ltd v Mobile Pay Ltd [2020] eKLR, where the court only allowed a refund after expressly confirming no breach had occurred and the premises had been reinstated.
20. It was submitted that the Appellant had to incur costs in restoring the premises after the Respondent vacated. Clause 17 of the Letter of Offer permitted the Appellant to apply the deposit towards restoring the premises. The Respondent did not demonstrate that they left the go-down in the condition in which it was leased.
21. The Appellant cited the case of Nairobi ELC Appeal 45 of 2019, Halfan Mkiwa v Professor Philip Nyinguro, where it was stated that:
“Rent deposits are ordinarily paid as security to the Landlord to be used in case of arrears or for repairs for damage to the premises. It is usually refundable provided the tenant settles all outstanding bills, rent arrears and leaves the premises in the condition it was in at the time he moved in.”
22. The Appellant contends that the learned trial magistrate failed to appreciate the operation of Clauses 3 and 17 of the Letter of Offer. In effect, the court rewrote the contract by refunding the deposit despite the tenant’s admitted breach and without considering the landlord’s rights to restoration. The Appellant invites the court to follow the guiding in Kwanza Estates (supra) and Haifan Mkiwa (supra).
23. It was further submitted the Appellant led unchallenged evidence that the Respondent left an unpaid electricity bill of Kshs.38,365.01, which Kenya Power & Lighting Company Limited was demanding from the Appellant as the registered tenant. The bill relates to usage during the Respondent’s occupation. The trial court erroneously declined to award this amount, stating the Respondent had “testified he cleared” the bill despite the absence of any documentary proof and the continued existence of the demand from KPLC.
24. The law imposes a clear obligation on a tenant to settle utility charges arising during occupation and as the Haifan (supra) establishes, the deposit is meant to cover these liabilities if the tenant does not settle them. The Respondent failed to demonstrate that it cleared the electricity bill before vacating.
25. Therefore, the court erred in declining to award the Appellant this sum. The Appellant submits that this amount should be awarded as a distinct and recoverable debt or, in the alternative, set off against the deposit. The trial court accepted the Respondent’s argument that the cheques issued at the end of January 2020 were part of a negotiated exit, and therefore operated as full settlement. This reasoning is legally flawed and overlooks the doctrine of duress and absence of accord and satisfaction.
26. The Respondent testified that it issued the post-dated cheques under pressure and due to threats, that their machines would be detained. In D & C Builders Ltd v Rees [1965] EWCA Civ 3, Lord Denning MR famously rejected a similar defence of settlement.
27. The Appellant submitted that a cheque for a lesser sum does not discharge a greater debt unless freely negotiated, and in this case, the cheques were not issued to settle all disputes, but merely to clear pending arrears so that the Respondent could vacate without further liabilities. That even if the parties intended the cheques to form a partial settlement, the fact that one of them was dishonoured (i.e., Kshs.216,446) invalidated any such accord. A party cannot claim protection from liabilities under a settlement that it itself failed to honour. The Appellant submitted that the dishonoured cheque demonstrates the absence of finality and validates it’s continued right to claim arrears and expenses arising from the tenancy.
28. The Appellant urged this court to allow the appeal and;
i. Set aside the lower court’s finding that the Respondent’s counterclaim partially succeeded.
ii. Order that the entire Kshs.800,000 deposit be forfeited to the Appellant pursuant to Clause 3 of the Letter of Offer.
iii. Award the Appellant the sum of Kshs.38,365.01 being unpaid electricity charges incurred during the tenancy.
iv. Award costs of the appeal and the suit below to the Appellant.
v. Grant any other or further relief as this Honourable Court may deem fit in the interests of justice.
Respondent’s submissions.
29. The Respondent submitted that they were Tenants in Go-down No. 6 at L.R. No. 12715/215 (Syokimau) from 01/02/2016 until the Respondent by a Notice dated 17/01/2020 notified the Appellant of their intention to Vacate the demised premises on 28/02/2020. The Respondent and the Appellant had only executed a Letter of Offer dated 15/01/2016 and No Lease was ever prepared, Concluded, Signed, Attested, Stamped and Registered as by Law required. Consequently, the letter of offer can only be interpreted to provide for a month-to-Month Tenancy Terminable by a One (1) Month Notice as by Law provided.
30. Before issuing the Termination Notice dated 17/01/2020 to vacate the premises on 28/02/2020, which Notice was more than one (1) month, the Respondent paid all outstanding Rent from July 2019 to December 2019 through Three (3) Cheques Nos. 00096, 97 & 98 dated 17/01/2020 for Kshs.325,464.40/= each totalling Kshs.2 476 339.20/= and requested that the Deposit of Kshs.800 000/= paid on 15/01/2016 be utilized to cover for the January & February 2020 Rent. The Notice explained the business struggles that the Respondent's business was undergoing leading to closure of operations and the need to remove the heavy machinery and equipment from the Leased Premises for storage which was going to take some time hence the Notice for almost 42 days.
31. The Respondent submitted that under Ground 1 of the Appellant's Memorandum of Appeal, the Appellant averred that the Learned Trial Magistrate erred in law and in fact in failing to record the proceedings and submissions of the Appellant in regards to the Deposit. The Respondent referred the Court to Paragraph 5 of the Judgment of the trial Court dated 01/08/2023 where the Honourable Magistrate expressly stated inter alia that:
"l have considered the pleadings, the evidence, the respective written submissions and the law."
32. The Respondent further submitted that the certified copy of the typed proceedings at pages 97-102 of the Appellant's Record of Appeal clearly indicates that the Trial Magistrate recorded all the proceedings before the trial Court and the proceedings recorded on 27/06/2023 and 25/07/2023 clearly indicate that parties were given enough time by the trial court to file their respective written submissions and a Judgment date was given after the trial court had confirmed that all the parties had filed their written submissions. The Appellant's allegation that the Trial Court failed to record the proceedings and submissions of the Appellant in regards to the Deposit cannot therefore be entertained by this Court. The final Judgment and Orders also clearly make reference to the Deposit of Kshs.800, 000/= as contained in the Counterclaim.
33. The Respondent submitted that the Appellant did not address the issue of the Rent Deposit in their Plaint filed in the trial Court although they were fully aware of the Demand letter to refund the Deposit as at 10/03/2020 immediately after the Respondent vacated the premises on 28/02/2020 and only raised the issue of forfeiture under Clause 3 of the letter of offer after being served with the Counterclaim dated 24/01/2023. There cannot be any forfeiture where Notice has been served and the Tenant has complied with all the Terms of the Lease/Tenancy unless there is any proof of damages and repairs conducted on the Premises at the time of vacation. None was pleaded and proved by the Appellant.
34. The Respondent submitted that in the meeting held between the Respondent's Directors and the Plaintiff on 28/01/2020, the Appellant declined the Respondent's request to use the Deposit of Kshs.800 000/= to cover for the January & February 2020 rent and insisted that the Respondent must pay January. February, March & April 2020 rent totalling to Kshs.1,624,488/= after deducting withholding tax and proceeded to issue an Invoice on 01/02/2020 and the ETR Receipt with stern warning that without the payment, the Respondent will not be permitted to start removing their machineries and equipment from the Go-down in February 2020. This was high handed, unreasonable, forceful, extortionist, and unconscionable and the Respondent was left with no choice but to comply under Duress. The invoice for Four (4) Months had no basis and defeats the Appellant's contention that Rent was payable Quarterly because One Quarter of a year is only Three (3) months and the Respondent's business had collapsed and Rent had not been paid since July 2019 hence the Notice to Vacate the Premises dated 17/01/2020.
35. That the Appellant further refused to refund the Deposit of Kshs.800,000/= paid by the Respondent on 15/01/2016 despite the fact that the Respondent took the Go-down in January 2016 in a Dilapidated state and the Respondents are the ones who painted and repaired the premises before moving in their Machineries and Equipment to the premises as was admitted by the Appellant in Paragraph 5 of the Plaint filed in the Trial Court. This was a clear demonstration of good will on the part of the Respondent from the inception of the Tenancy arrangement.
36. That in order to avoid confrontations with the Appellant's guards at the Go-Down, and for ease of movement of its machines and Equipment out of the premises, the Respondent was forced to issue the Appellant with Two (2) Cheques Nos. 000112 & 113 for Kshs.704 021/= each dated 06/02/2020 and a Postdated Cheque dated 30/05/2020 for Kshs.216,446/= all totalling Kshs.1,624,488/= to cover the Rent for January & February 2020 and the unlawfully demanded and Invoiced Rents for March & April 2020 whereas the Respondent was to vacate the premises on 28/02/2020 pursuant to the Notice dated 17/01/2020 and immediately after the Respondent vacated the Premises on 28/02/2020, the Respondent's Advocates wrote to the Appellant on 10/03/2020 demanding Refund of the Deposit and stopping the Post-dated Cheque for 30/05/2020.
37. It was submitted that since this payment was made under duress and through coercion, extortion and undue influence, the Respondent instructed their Advocates as soon as they vacated the premises on 28/02/2020 to write a demand letter to the Appellant and stopped the Post-dated Cheque dated 30/05/2020 for Kshs.216 446/=. The Respondent's demand letter to the Appellant dated 10/03/2020 clearly indicated that the Postdated Cheque for Kshs.216 446/= had been stopped and Demanded a Refund of Kshs.584,042/= (Being the March & April 2020 Rent) paid together with a refund of the Deposit of Kshs.800,000/= making a total of Kshs.1,384,042/=.
38. That despite the Respondent having found the premises in a dilapidated state and outfitted, painted and customized the premises for use as was admitted by the Appellant in Paragraph 5 of the Plaint filed in the Trial Court, the Respondent vacated the premises on 28/02/2020 in a good and tenantable state and the Appellant refused to refund the deposit of Kshs.800,000/= as demanded on 10/03/2020 and never provided any receipt or proof of any repairs done on the premises after the Respondent vacated the premises to justify withholding/forfeiture of the deposit. That the Forfeiture Clause in the Letter of offer was only applicable in case of breach of the Tenancy Conditions during the Tenancy period and to rectify any default by the Respondent on the Premises. None was pleaded and proved by the Appellant.
39. The Respondent submits that the Learned Magistrate was justifiably right in finding that there was no basis of retaining the deposit used as security under Paragraph 22 of the Judgment dated 01/08/2023. That the Respondent is therefore entitled to the refund of deposit of Kshs.800,000/= having settled everything due to the Appellant as per the Judgment of the Trial Court less the sum of Kshs.216,446/= and Commission of Kshs.1,200/= leaving a balance of Kshs.582 354/= as ordered by the Trial Court.
40. The Respondent further submits that the Learned Trial Magistrate was lenient enough to order that the Appellant is entitled to the sum of Kshs.216 446/= on the unpaid Cheque which was to cover Rent for the Months of March & April 2020 whereas the Respondent had vacated the premises on 28/02/2020.
41. The Respondent submits that the mere fact that a case has been instituted by a party in Court is not a guarantee that the case will succeed in whole or in part. Cases are considered and determined on merit based on the facts, evidence and the law and it is therefore absurd for the Appellant to claim that the Learned Magistrate failed to appreciate the suit as framed in the Plaint dated 25/11/2022. That the Trial Court considered the Pleadings/Facts, the evidence produced and the law before coming to the findings.
42. The Respondent invited this Court to be guided by the case of Saul Sewe Ochienq' Nyamoqo Versus Kiios Holdinqs Ltd [2018] eKLR where Justice J.K. Serqon while considering an Appeal by a Tenant whose claim for Refund of Rent Deposit was dismissed by the Magistrate's Court held that the Appellant (Tenant) had adduced sufficient evidence that he left the premises in a tenantable condition and the Respondent (Landlord) had not tendered any evidence that the premises were left in untenantable state since they had been given prior notice before the Tenant vacated the Premises and they did not prove that they spent any money or part of the Deposit in repairing any damage left by the Tenant and consequently the Judge set aside the Orders by the Magistrate dismissing the Claim for Refund of the Deposit and allowed the suit for refund of the Deposit to the Tenant by the Landlord.
43. In conclusion, the Respondent submitted that the Appellant's Appeal is spurious, inept, frivolous and incompetent and has no merit whatsoever in law and fact and should be dismissed with costs of the appeal paid to the Respondent by the Appellant. That the Learned Trial Magistrate was right in holding that there was no basis for the Appellant to retain the deposit used as security and that the Respondent is entitled to his money having paid everything due to the Appellant.
44. That under the circumstances, it is only fair and just for the Appellant's Appeal to be dismissed with costs and the Judgment of the Trial Court delivered on 01/08/2023 be upheld in its entirety so that the Respondent can enjoy the fruits of their Judgment and Orders of the Court.
Analysis and Determination
45. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited [1968] E.A 123. (1958) E.A page 424.
46. I have perused the Record of Appeal, the Supplementary Record of Appeal and considered the Parties’ submissions on the appeal and also taken into consideration the judicial decisions cited and attached; I will proceed to consider two issues arising from the appeal namely;
i. Whether the Appellant is entitled to the security deposit of Kshs.800,000/= or any part thereof;
ii. Whether the Respondent ought to pay the electricity bill of Kshs.38,365.01/=
i. Whether the Appellant is entitled to the Kshs.800,000/= or any part thereof;
47. I have perused the Letter of Offer dated 15th January 2016 and agree with the trial court that the same constituted the governing agreement between the parties herein.
48. Clause 3 of the Letter provided that if the lease shall be terminated prior to the expiry of the lease term on account of any default on your part or if there is any default on your part during the currency of a lease then in such case the security deposit will be forfeited to the Landlord absolutely.
49. With the above Clause 3, I have to determine whether there was any default on the part of the Respondent that warrant forfeiture of the security deposit of Kshs.800,000 /= to the Appellant. On or about January 2020, the Respondent requested to vacate the premises due to business struggles that the Respondent's business was undergoing leading to closure of operations and the need to remove the heavy machinery and equipment from the Leased Premises. I am of the considered view that the reason for which the Respondent is said to have terminated the lease were due to circumstances beyond his control being financial constraints and this does not amount to any default on its part in as far as the lease herein is concerned.
50. In the Plaint dated 25th November 2022, the Appellant sought for prayers for:
a) Dishonoured cheque amount being Kshs.216,446/=
b) Commission on the unpaid cheque kshs.1,200/=
c) Unpaid electricity Bill of Kshs.38,365.01/=
d) Costs of the suit
e) Interest on a, b and c above at court rates from the dated of filing suit till payment in full
f) Any other relief as the court may deem fit to grant.
51. In a Statement of Defence and Counterclaim, the Respondent sought for prayers for :
a) The Plaintiff/Appellant suit to be dismissed with costs to the Defendant/Respondent;
b) The Plaintiff/Appellant does refund to the Defendant/ Respondent the deposit of Kshs.800,000/= paid on 15/01/2016 at the commencement of the Tenancy together with interest at court rates;
c) The costs of the Counterclaim and such further relief as the court deems just and fair to grant in the unique circumstances of the case.
52. From the evidence on record, it is not disputed that the Respondent had paid the Appellant a security deposit of Kshs.800,000/=. In requesting for an early termination of the Lease, the Respondent issued the Appellant with three post dated cheques of Kshs.704,021/=, another one for Kshs.704,021 and for Kshs.216,446/=.
53. The last cheque for the sum of Kshs.216,446/= was returned unpaid on advice that it had been recalled by the Respondent. The Appellant was charged a commission on the unpaid cheque in the sum of Kshs.1,200/=.
54. At this point I find Kshs.216,446/= and Kshs.1,200/= to be payable to the Appellant.
55. In the Plaint the Appellant did not claim for forfeiture of the Kshs.800,000/= or for any costs of restoration of the Go-down to the state in which the Respondent found it and how much this was.
56. The was no Amended Plaint that was later filed by the Appellant in that regard. It is by now well settled by precedent that parties are bound by their pleadings.
57. In Tolksdorf v Mwangi & 3 others (2025) KEELC 848 (KLR), the
court restated this principle by holding that;
“Additionally, this is an issue that was not pleaded in them Plaint dated 8th April 2022. It is trite that parties are bound by their pleadings and cannot allowed to depart from the same”.
58. I find that the trial court was right in not awarding the deposit of Kshs.800,000/= and restoration costs which were never pleaded by the Appellant.
59. As rightly found by the trial court, the Appellant was entitled to Kshs.216,446/= for rent arrears and Kshs.1,200/= for commission for unpaid cheque which was properly deducted from the deposit of Kshs.800,000/= leaving a balance of Kshs.582,354/= payable to the Respondent.
60. I find no reason to disturb the trial magistrate’s finding on the issue of deposit herein.
ii. Whether the Respondent ought to pay the electricity bill of Kshs.38,365.01/=
61. The trial magistrate declined to award the Appellant the amount of the electricity bill stating that the Respondent had already moved out of the Go-down. However, upon my re-evaluation of the evidence, I have established that the Respondent did not adduce any evidence to show that by the time he was moving out he had cleared all the outstanding electricity bills and therefore it was not supposed to pay the amount demanded by the Appellant. In the absence of any evidence to the contrary, I fi
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