1. By way of a plaint dated 2nd September 2020, the Plaintiff sued the defendant seeking the following orders:
a. Rent arrears owing being Kshs 1,142, 090/=;
b. Rent for the remainder of the lease period being Kshs 20,248,296/=;
c. Costs for the restoration of the suit premises amounting to Kshs 1,371,105/=;
d. General damages for breach of the lease agreement;
e. Costs of this suit;
f. Interests on a, b, c and d above at court rates from date of filing suit till payment in full and;
g. Any other relief as this court may deem fit and just to grant.
2. The Plaintiff alleges that on 1st February 2017, it entered into a Lease Agreement with the defendant over godown No. 2 on L.R No. 12715/217 I.R 44413/1 N.W Athi River, Machakos District, (the suit premises). It avers that the lease was drawn in conformity with the provisions of the repealed Registration of Titles Act, the Land Act No. 6 of 2012 and the Land Registration Act No. 3 of 2012. The lease was to run for a fixed term of 6 years from 1st February 2017 to 31st January 2023 with an option to renew. The plaintiff further avers that the lease was duly registered on 20th November 2018 as IR No. 4565/3/70.
3. According to the plaintiff, upon execution of the lease, the Defendant took possession of the premises, fitted and customized them to suit its operations, and moved its properties therein. However, on 8th September 2018, the Defendant vacated the premises without notice. The plaintiff contends that the lease did not contain a break clause and was therefore not subject to termination by either party through notice or otherwise.
4. The Plaintiff further alleges that the Defendant vacated the premises without its knowledge and was in rent arrears of Khs 1,142, 090/= at the time of vacating. It urges that in the absences of a break clause, and given that the Defendant vacated the premises without consultation, the Defendant remains liable to pay the rent for the remainder of the lease period from November 2018 to 31st January 2023, amounting to Kshs 20,248, 296/=.
5. Additionally, the Plaintiff states that the Defendant failed to restore the premises to a good and tenantable condition as required under the lease, necessitating repairs at a cost of Kshs 1,371,105/=. The Plaintiff therefore claims rent arrears of Kshs 1,142,090/=, rent for the remainder of the lease period of Kshs 20,248,296/= and restoration costs of Kshs 1,371, 105/=.
6. In its Defence dated 13th July 2021, the Defendant denies executing any lease agreement with the Plaintiff and contends that no valid lease existed capable of registration. It avers that the Plaintiff purported to register a lease on 20th November 2018 three months after the Defendant had vacated the suit premises and terminated the tenancy. The Defendant therefore asserts that the purported registration was illegal and void ab initio.
7. The Defendant further states that it vacated the premises after its business operations were frustrated by the Plaintiff and following unsuccessful negotiations between the parties. It maintains that the Plaintiff was aware of its intention to vacate and that it left the premises in August 2018 after settling all outstanding rent.
8. The suit proceeded to hearing which each party calling one witness. Thereafter, both parties filed their respective submissions.
9. At the trial, PW1, John Gichuhi, the Plaintiff’s property manager adopted his witness statement dated 2nd September 2020 and produced the Plaintiff’s list of documents dated 2nd September 2020 as Exhibits 1 to 4. He testified that the lease agreement (PExh1) was duly signed by both parties and registered. He stated that the lease was for a fixed term of six uninterrupted years and did not contain an exit clause.
10. He further testified that prior to the lease, the parties had executed a letter of offer, and that rent was payable quarterly in advance. He stated that although there were meetings between the parties, these were only for rent discussions and the Defendant never indicated an intention to vacate. He testified that the Defendant nonetheless vacated the premises on 8th September 2018 having occupied the premise from February 2017.
11. PW1 stated that the Defendant left without notice and accrued rent arrears of Kshs 1,242,090/= for the period July to August 2018 out of which only Kshs 100,000/= was paid after follow up. He emphasized that the defendant remained liable for rent up to January 2023 due to absence of an exit clause in the lease.
12. He also testified that the Defendant had been operating a car garage on the premises and failed to restore the building upon vacating, compelling the plaintiff to undertake repairs at a cost of Kshs 1,371,105/=. He denied that the Plaintiff frustrated the Defendant’s business and maintained that the lease was willingly executed. He confirmed that a demand letter was issued and urged the court to grant the orders sought in the plaint.
13. On cross examination, PW1 testified that he was not employed by the Plaintiff at the time the lease agreement was executed. He confirmed that the Defendant took possession of the premises in 2017. When referred to the lease agreement and the Defendant’s witness statement, he noted that the signatures on the two documents differed. He stated that the advocate who attested the lease was instructed and paid by the Plaintiff and that he was not present to confirm whether the Defendant signed the lease.
14. He further testified that prior to the Defendant vacating the premises, the rent payments were generally up to date although some arrears existed, and was unsure why the Defendant moved out. He stated that the Plaintiff owned 16 godowns in Syokimau along Mombasa road. When he was referred to PExhibit 3, an invoice dated 22nd March 2019, he noted that the invoice did not specify the particular godown that was being repaired and confirmed that it was not a receipt.
15. He stated that rent invoices were issued quarterly and that rent was subject to an annual escalation of 10%. As at July 2018, rent arrears stood at Kshs 215,490/=. He further testified that legal fees of Kshs 139,200/= had been debited in May 2017. He stated that the caretaker of the premises confirmed that the Defendant vacated in September 2018. He also clarified that the sum of Kshs 450,000/= paid on 29th November 2021 and 30th January 2017 was rent and not a deposit.
16. On re-examination, PW1 clarified that the lease was signed by both parties. He explained that the apparent interchange of signatures arose because the lessor signed on page 19 while the lessee signed on page 18 and he himself signed all pages of the lease. He maintained that there was no impropriety in the use of the same advocate by both parties.
17. Regarding the invoice, he stated that it related to repairs carried out on the leased godown. He reiterated that the sum of Kshs 450,000/= paid was rent and not deposit.
18. The above marked the close of the Plaintiff’s case.
19. DW1, Clifford Munya, a Director of the Defendant adopted his witness statement dated 14th July 2021 and produced the Defendant’s list and bundle of documents dated 13th July 2021. He testified that the Defendant company had two directors one of whom passed away prior to the alleged execution of the lease.
20. He stated that the Plaintiff had been the Defendant’s landlord for approximately one year and few months from February 2017 to end of July 2018. He denied signing the lease agreement and upon being referred to it, stated that the signatures therein were not his. He also stated that he does not know the attesting advocate and could not confirm who executed the agreement.
21. He stated that the Defendant vacated the premises at the end of July 2018 as the business had become expensive and unsustainable; and due to unfavorable conduct by the Plaintiff, including being denied access to the premises after the godowns were locked. He testified that he informed the caretaker, Samuel Thuranira, who acted as an intermediary between the parties, as well as the Plaintiff’s office, and was allowed to vacate by the caretaker and security personnel.
22. He testified that rent invoices were raised quarterly and stated that by the time the Defendant vacated, all rent had been paid, although payments were sometime paid irregularly. Referring to Plaintiff Exhibit 2, the Defendant’s statement of account, he acknowledged that it included legal fee for Kshs 139, 200/= but he stated that he did not know the basis of those charges. He further testified that in February 2019, the Plaintiff involved the police, who allegedly harassed him and compelled him to pay Kshs 100,000/= without a proper computation of statement of account. He maintained that the premises were left in a tenantable condition.
23. On cross-examination, DW1 confirmed that the signature on page 2 of his witness statement was his. When referred to the lease agreement, he acknowledged that the signature at the bottom of each page resembled his signature, but claimed that the signature on page 18 although similar, was not his.
24. He testified that he conducted a motor vehicle repair business in the godown and stated that he did not make any structural alteration to the premises. He confirmed that rent invoice were issued quarterly, although payments were sometimes made within the quarter. He stated that while the arrangement for quarterly payment of rent existed, it was not reduced in writing.
25. He testified that rent was paid through cheques and money transfer and maintained that there were no arrears at the time the Defendant vacated, although he had not produced bank statements and relied on the Plaintiff’s statement of account. He stated that parties did not agree on the duration of the tenancy,
26. Upon being referred to the lease document, he read out that the term ran from, 1st February 2017 up to 30th December 2022 with rent payable quarterly in advance, and that the agreement did not contain a termination clause. He stated that he gave three months’ notice at the beginning of the 2nd quarter and also informed the caretaker but admitted that he had not produced any evidence of such notice.
27. He acknowledged the Plaintiff’s statement of account as reflecting payments made and stated that any additional claim related to the fourth quarter. He maintained that his business did not damage the premises and that the caretaker inspected them before permitting him to vacate. He stated that the caretaker acted as the Plaintiff’s representative. He confirmed that the said caretaker is not before court as a witness.
28. Referring to Paragraph 4 of the statement of defence, he testified that the alleged acts of frustration including being denied access to premises when rent payment delayed and issues relating to water supply, which he communicated through the caretaker compelled him to vacate because of the acts of frustration and it became expensive. He also stated that he made payments totaling Kshs 500,000/= by cheques.
29. When referred again to the lease agreement, he denied the signature on page 18 was his and stated that he was unfamiliar with signature on page 19. He clarified that the Defendant company was the lessee and that the Plaintiff company was the lessor and disputed the Plaintiff’s explanation regarding the alleged interchange of signatures.
30. On re-examination, DW1 stated that he did not make any alterations or improvements to the premises. He explained that by the time he vacated, the next quarter beginning August had not commenced and that he never occupied the premise in that quarter. He stated that according to the Plaintiff’s statement of account, he had paid a cumulative amount of Kshs 450,000/=
31. He further stated that a contract is executed at the execution page and not merely by signatures at the bottom of each page and maintained that the lease was not properly executed. He reiterated that he dealt primarily with the caretaker, who operated from an office within the premises on behalf of the Plaintiff.
32. After the close of evidence, parties filed their respective submissions. The Plaintiff’s submissions are dated 10th September 2025 while the Defendant’s submissions are dated 11th February 2026.
Plaintiff’s submissions
33. The Plaintiff began its submissions with a brief background of the matter. Its case is founded on a written lease agreement executed on 1st February 2017 for a commercial godown, creating a fixed-term tenancy of six years without any provision for early termination. Pursuant to this agreement, the Defendant took possession of the premises and paid rent. However, on 8th September 2018, the Defendant allegedly vacated the premises abruptly, without notice or mutual agreement, well before the agreed expiry date of January 2023. Although the lease was registered on 20th September 2018 under the Land Registration Act, the Plaintiff maintains that both its contractual validity and subsequent registration render it binding and enforceable.
34. As a result of the Defendant’s premature exit, the Plaintiff claims rent arrears of Kshs.1,142,090/=, damages for breach of lease initially quantified as Kshs. 20,248,296/= for the unexpired term, and Kshs. 1,371,106/= incurred in restoring the premises after they were allegedly left in a dilapidated condition.
35. The Plaintiff identified two issues for determination; whether a valid lease agreement existed between the parties and whether there was a breach of the lease and if so, the appropriate remedies.
36. On the validity of the lease, the Plaintiff submits that the Defendant’s denial of execution is an afterthought unsupported by evidence. Although, the Defendant’s director disowned the signature on the lease, he failed to provide expert evidence, such as a forensic report, to substantiate the allegation of forgery. The Plaintiff points to the consistency of the signature across documents and urges the court to reject the denial.
37. Reliance is placed on the authority of Koinange & 13 others v Charles Karuga Koinange [1986] KEHC 3 (KLR), where the court held that allegations of forgery must meet a high evidentiary threshold and cannot be based on inconclusive or circumstantial claims. Further, the Plaintiff invokes Section 54 of the Land Registration Act arguing that registration creates a presumption of authenticity, thereby shifting the burden to the Defendant to disprove the lease. In support, it cites Doshi v Chemutut & 7 others (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR).
38. The Plaintiff also relies on Section 3(3) of the Law of Contract Act to argue that the lease was enforceable inter partes even prior to registration.
39. The Plaintiff further submits that the Defendant’s conduct taking possession, occupying the premises for 19 months and paying rent amounts to acceptance of the lease terms and gives rise to estoppel under Section 120 of the Evidence Act. Authorities relied on include Diamond Homes Limited v Shapi (Civil Appeal 118 of 2021) [2024] KECA 1161 and Busienei v Lizano Limited KEHC 4483 which emphasizes that a contract may be inferred from conduct demonstrating offer, acceptance, and consideration.
40. The Plaintiff also invokes the doctrine of equitable estoppel, arguing that the Defendant cannot deny the existence of the lease after benefiting from it. In this regard, reliance is placed on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR to support the principle that a party cannot approbate and reprobate. Similarly, Onyancha & another v Lagat (Civil Appeal E039 of 2022) [2025] KEELC 672 is cited to reinforce the position that a binding contract may arise from clear offer, acceptance and consideration and that a party who has enjoyed contractual benefits cannot later deny its existence. The Plaintiff contends that the Defendant’s failure to challenge the lease during the tenancy further weakens its position.
41. On the issue of breach, the Plaintiff submits that the Defendant fundamentally breached the lease by unilaterally vacating the premises in the absence of a break clause, 4 years and 5 months before expiry of the term. Reliance is placed on Kwanza Estates Limited v Jomo Kenyatta University of Agriculture & Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) where the Supreme Court held that unilateral termination of a lease without a termination clause constitutes a breach.
42. While acknowledging the duty to mitigate loss, the Plaintiff argues that mitigation was constrained because the premises were left in a dilapidated state and were of a specialised nature with limited demand. It further notes that in Kwanza Estates (Supra), the court declined to award rent for the entire unexpired term but instead granted compensatory damages equivalent to a reasonable re-letting period, of three months. Drawing from this reasoning, the Plaintiff urges the court to award damages equivalent to at least one quarter’s rent, consistent with the lease’s quarterly payment structure and the disruption caused by the premature termination.
43. Additionally, the Plaintiff submits that the Defendant breached its obligation to maintain the premises in good and tenantable condition, resulting in repair costs of Kshs. 1,371,106/=. In support, reliance is placed on Kenol Kobil PLC v Canarian Holdings Limited’ Canarian Holdings Limited (Plaintiff); Kenol Kobil PLC (Defendant) (Environment & Land Case 111 of 2019 [2023] KEELC 20945 (KLR) where the court awarded damages for failure to restore leased premises.
44. The Plaintiff emphasizes that the repair costs were specifically pleaded, supported by invoices and receipts and were not controverted by the Defendant. It also reiterates the claim for rent arrears of Kshs. 1,142,090/=, supported by a statement of account.
45. Finally, the Plaintiff seeks equitable relief in the form of specific performance, arguing that damages alone may not fully compensate for the loss of a structured rental income and the disruption caused. Reliance is placed on Gharib Suleman Gharib v Abdulrahman Mohamed Agil LLR No. 750 (CAK) Civil Appeal No. 112 of 1998 where the Court of Appeal held that specific performance may be granted where damages are inadequate to achieve complete justice.
46. In conclusion, the Plaintiff contends that the Defendant’s attempt to deny the lease is untenable in light of statutory provisions, case law, and equitable doctrines. It urges the court to uphold the sanctity of contracts by granting the remedies sought.
Defendant’s submissions
47. The Defendant’s submissions begin with brief background of the case. It opposes the Plaintiff’s claim in its entirety as set out in the Plaint dated 2nd September 2020. The Defendant frames the dispute around three key issues: whether the lease agreement dated 1st February 2017 is legally binding; whether any agreement existed between the parties and if so, whether the Defendant is in breach; and whether the Plaintiff is entitled to the reliefs sought.
48. On the first issue, the Defendant contends that the lease agreement dated 1st February 2017 is not legally binding as it was never executed by the Defendant. While admitting that it occupied the Plaintiff’s premises at Godown No. 2 on LR No. 12715/217 from around February 2017, the Defendant maintains that the tenancy was not governed by any written lease but arose in the absence of a signed agreement.
49. The Defendant asserts that although a draft lease was provided by the Plaintiff, it was never executed, and its terms cannot therefore be enforced. Reliance is placed on Section 37(2) of the Companies Act, 2015, which requires that a company executes a document either through two authorised signatories or by a director in the presence of a witness. The Defendant argues that the alleged lease does not meet this statutory requirement, as it was neither properly signed nor attested, and neither PW1 nor DW1 could identify the signatories.
50. The Defendant further challenges the credibility of the lease on the basis that it was registered on 20th November 2018 approximately one year and nine months after its alleged execution and three months after the Defendant had vacated the premises thereby suggesting bad faith on the part of the Plaintiff. On this basis, the Defendant submits that the lease is invalid, not binding and incapable of regulating parties’ relationship. Consequently, it argues that the tenancy falls within the ambit of a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, and that jurisdiction properly lies with the Business Premises Rent Tribunal rather than the court.
51. On the second issue, the Defendant submits that although no valid written agreement existed, there was an oral agreement under which it took possession of the premises and paid rent. It emphasizes that rent was paid monthly, despite invoices being issued quarterly, demonstrating that the arrangement was not governed by the alleged lease terms.
52. The Defendant argues that for a binding contract to exist, there must be offer, acceptance, and consideration, and an intention to create legal relations. In support, it relies on Omar Gorhan v Municipal Council of Malindi (Council Government of Kilifi) and Overlook Management Kenya Ltd [2020] eKLR, which cited Garvey v Richards (2011) JMCA 16 for the proposition that a contract must demonstrate intention, certainty and enforceable obligations.
53. While conceding that it intended to lease the premises and paid rent as consideration, the Defendant denies any intention to be bound by the specific terms of the unexecuted lease, as evidenced by its refusal to sign it. The Defendant therefore characterizes the arrangement as a periodic tenancy under Section 57 of the Land Act, specifically a month-to-month tenancy based on the pattern of monthly payments. It contends that it fully discharged its obligations under this arrangement and is not in breach.
54. The Defendant further alleges that it did not enjoy quiet possession, asserting that the Plaintiff’s conduct interfered with its use of the premises and ultimately forced it to vacate in August 2018. It states that prior to vacating, it settled all outstanding dues and informed the Plaintiff’s caretaker of its intention to leave.
55. The Defendant relies on the Plaintiff’s statement of account, which shows an outstanding balance of Kshs. 215,490/= as at 31st July 2018, but disputes the inclusion of legal fee of Kshs. 139,200/= on the basis that they were neither disclosed nor properly invoiced and were allegedly linked to the registration of an agreement that was never validly executed.
56. It further states that it made a payment of Kshs. 100,000/= in February 2019 following persistent demands, despite the actual balance being Kshs. 76,290/= thereby resulting in a credit in its favour. On this basis, the Defendant maintains that it is not in breach and that the Plaintiff is in fact indebted to it.
57. On the third issue regarding entitlement to reliefs, the Defendant submits that the Plaintiff is not entitled to any of the prayers sought. It relies on the decision in Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) to emphasize that damages for breach of contract are compensatory in nature and intended to restore the claimant to the position it would have been but for the breach, subject to the duty to mitigation loss.
58. The Defendant further submits that general damages are not awardable alongside special damages and that damages must be specifically pleaded and proved.
59. With respect to rent arrears, the Defendant disputes the claim of Kshs.1,142,090/= arguing that the Plaintiff improperly invoiced rent for the period covering August to October 2018 despite the Defendant having vacated in August 2018. It reiterates that as at 31st July 2018, the outstanding amount was Kshs. 215,490/= inclusive of the disputed legal fee of Kshs. 139,200/=.
60. The Defendant maintains that following its payment of Kshs. 100,000/= in February 2019, it had settled all legitimate dues. It also notes that the Plaintiff did not claim rent in lieu of notice which it argues supports its position that notice of termination was given to the caretaker. Accordingly, the Defendant contends that the claim for rent arrears is unmerited.
61. Regarding the claim for rent for the remainder of the lease term, the Defendant submits that it is not liable to pay rent for a period not contractually agreed upon, given the alleged invalidity of the lease. It further argues that even if the lease was valid it would be unconscionable to compel payment for the unexpired term after vacating, particularly in light of the Plaintiff’s alleged interference with its quiet enjoyment of the premises. Again, relying on Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR), the Defendant emphasizes that the appropriate remedy if any, would be limited to rent up to the date of vacating and reasonable damages for breach, rather than recovery of rent for the entire unexpired term.
62. On the claim for restoration costs of Kshs. 1,371,105/=, the Defendant denies liability, asserting that it left the premises in good and tenantable condition and did not carry out any alterations, as its business only required open space.
63. The Defendant challenges the evidentiary value of the Plaintiff’s documents, noting that the invoices refer generally to works carried out on a godown along Mombasa Road without specifying the particular unit occupied by the Defendant. It further contends that the invoices lack sufficient detail regarding the nature of the works, appear excessive, and are not supported by receipts evidencing actual payment. Additionally, it argues that there was no agreement obligating it to undertake renovations and that the Plaintiff has failed to discharge its burden of proof.
64. On the claim for general damages, the Defendant submits that such damages are not recoverable for breach of contract. It relies on Sundowner Lodge Limited v Kenya Tourist Development Corporation [2023] KECA 1131 (KLR), where the Court of Appeal affirmed that general damages are generally not ordinarily awardable for breach of contract except in exceptional circumstances. Further reliance is placed on Total (Kenya) Limited (formerly Caltex Oil Kenya Limited) v Janevams Limited [2015] KECA 822 (KLR) which reiterated that damages for breach of contract are generally quantifiable and therefore not general in nature.
65. In conclusion, the Defendant urges the court to find that the lease agreement is invalid, that the tenancy was periodic and properly terminated, that the Defendant is not in breach and that the Plaintiff has failed to prove its claims. Accordingly, it prays that the Plaint dated 2nd September 2020 be struck out with costs.
Analysis and Determination
66. I have carefully considered the pleadings, the oral and documentary evidence presented by both parties, as well as their respective submissions. In my view, the following issues arise for determination:
a.) Whether there existed a valid and binding lease agreement between the parties and the nature of the tenancy relationship;
b.) Whether the Defendant breached the terms governing that tenancy and if so, to what extent;
c.) Whether the Plaintiff is entitled to the reliefs sought.
Whether there existed a valid and binding lease agreement between the parties and the nature of the tenancy relationship
67. On this first issue, I have evaluated the competing positions advanced by the parties alongside the evidence on record.
68. The Plaintiff’s position is that a written lease agreement dated 1st February 2017 was duly executed between the parties and subsequently registered. In support of this position, the Plaintiff produced the lease document as an exhibit and maintained that it was signed by both parties and duly attested to by an advocate. The Plaintiff further submitted that the signatures appearing on the lease are consistent with those appearing on other documents attributable to the Defendant, and that the Defendant took possession of the premises and performed obligations under the lease, including payment of rent.
69. The Defendant, on the other hand, challenges the validity of the lease on the basis that its director did not sign the execution section of the agreement. The director contends that the signature appearing at the execution page is not his and that the absence of proper execution, the agreement is invalid. However, and quite significantly, the same director admitted during cross-examination that the signatures appearing at the bottom of the other pages of the lease are indeed his. This admission substantially undermines the credibility of the Defendant’s denial.
70. The law is well settled that the burden of proof lies on the party who asserts a particular fact. Sections 107 to 109 of the Evidence Act, requires that a party alleging invalidity, forgery or non-execution of a document must prove such allegations. This principle was articulated in Koinange & 13 others v Charles Karuga Koinange [1986] KEHC 3 (KLR) where the court emphasized that allegations of forgery or fraud cannot be founded on mere assertions or suspicion but must be supported by cogent and credible evidence.
71. In the present case, the Defendant, beyond denying the signature, has not placed before this court any expert evidence, such as a forensic document examiner’s report, to support the contention that the signature on the execution page is not his. Nor did the Defendant call the attesting advocate or any other witness to challenge the authenticity of the lease. The Defendant’s witness having later conceded to signing the rest of the pages save the execu
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a. Rent arrears owing being Kshs 1,142, 090/=;
b. Rent for the remainder of the lease period being Kshs 20,248,296/=;
c. Costs for the restoration of the suit premises amounting to Kshs 1,371,105/=;
d. General damages for breach of the lease agreement;
e. Costs of this suit;
f. Interests on a, b, c and d above at court rates from date of filing suit till payment in full and;
g. Any other relief as this court may deem fit and just to grant.
2. The Plaintiff alleges that on 1st February 2017, it entered into a Lease Agreement with the defendant over godown No. 2 on L.R No. 12715/217 I.R 44413/1 N.W Athi River, Machakos District, (the suit premises). It avers that the lease was drawn in conformity with the provisions of the repealed Registration of Titles Act, the Land Act No. 6 of 2012 and the Land Registration Act No. 3 of 2012. The lease was to run for a fixed term of 6 years from 1st February 2017 to 31st January 2023 with an option to renew. The plaintiff further avers that the lease was duly registered on 20th November 2018 as IR No. 4565/3/70.
3. According to the plaintiff, upon execution of the lease, the Defendant took possession of the premises, fitted and customized them to suit its operations, and moved its properties therein. However, on 8th September 2018, the Defendant vacated the premises without notice. The plaintiff contends that the lease did not contain a break clause and was therefore not subject to termination by either party through notice or otherwise.
4. The Plaintiff further alleges that the Defendant vacated the premises without its knowledge and was in rent arrears of Khs 1,142, 090/= at the time of vacating. It urges that in the absences of a break clause, and given that the Defendant vacated the premises without consultation, the Defendant remains liable to pay the rent for the remainder of the lease period from November 2018 to 31st January 2023, amounting to Kshs 20,248, 296/=.
5. Additionally, the Plaintiff states that the Defendant failed to restore the premises to a good and tenantable condition as required under the lease, necessitating repairs at a cost of Kshs 1,371,105/=. The Plaintiff therefore claims rent arrears of Kshs 1,142,090/=, rent for the remainder of the lease period of Kshs 20,248,296/= and restoration costs of Kshs 1,371, 105/=.
6. In its Defence dated 13th July 2021, the Defendant denies executing any lease agreement with the Plaintiff and contends that no valid lease existed capable of registration. It avers that the Plaintiff purported to register a lease on 20th November 2018 three months after the Defendant had vacated the suit premises and terminated the tenancy. The Defendant therefore asserts that the purported registration was illegal and void ab initio.
7. The Defendant further states that it vacated the premises after its business operations were frustrated by the Plaintiff and following unsuccessful negotiations between the parties. It maintains that the Plaintiff was aware of its intention to vacate and that it left the premises in August 2018 after settling all outstanding rent.
8. The suit proceeded to hearing which each party calling one witness. Thereafter, both parties filed their respective submissions.
9. At the trial, PW1, John Gichuhi, the Plaintiff’s property manager adopted his witness statement dated 2nd September 2020 and produced the Plaintiff’s list of documents dated 2nd September 2020 as Exhibits 1 to 4. He testified that the lease agreement (PExh1) was duly signed by both parties and registered. He stated that the lease was for a fixed term of six uninterrupted years and did not contain an exit clause.
10. He further testified that prior to the lease, the parties had executed a letter of offer, and that rent was payable quarterly in advance. He stated that although there were meetings between the parties, these were only for rent discussions and the Defendant never indicated an intention to vacate. He testified that the Defendant nonetheless vacated the premises on 8th September 2018 having occupied the premise from February 2017.
11. PW1 stated that the Defendant left without notice and accrued rent arrears of Kshs 1,242,090/= for the period July to August 2018 out of which only Kshs 100,000/= was paid after follow up. He emphasized that the defendant remained liable for rent up to January 2023 due to absence of an exit clause in the lease.
12. He also testified that the Defendant had been operating a car garage on the premises and failed to restore the building upon vacating, compelling the plaintiff to undertake repairs at a cost of Kshs 1,371,105/=. He denied that the Plaintiff frustrated the Defendant’s business and maintained that the lease was willingly executed. He confirmed that a demand letter was issued and urged the court to grant the orders sought in the plaint.
13. On cross examination, PW1 testified that he was not employed by the Plaintiff at the time the lease agreement was executed. He confirmed that the Defendant took possession of the premises in 2017. When referred to the lease agreement and the Defendant’s witness statement, he noted that the signatures on the two documents differed. He stated that the advocate who attested the lease was instructed and paid by the Plaintiff and that he was not present to confirm whether the Defendant signed the lease.
14. He further testified that prior to the Defendant vacating the premises, the rent payments were generally up to date although some arrears existed, and was unsure why the Defendant moved out. He stated that the Plaintiff owned 16 godowns in Syokimau along Mombasa road. When he was referred to PExhibit 3, an invoice dated 22nd March 2019, he noted that the invoice did not specify the particular godown that was being repaired and confirmed that it was not a receipt.
15. He stated that rent invoices were issued quarterly and that rent was subject to an annual escalation of 10%. As at July 2018, rent arrears stood at Kshs 215,490/=. He further testified that legal fees of Kshs 139,200/= had been debited in May 2017. He stated that the caretaker of the premises confirmed that the Defendant vacated in September 2018. He also clarified that the sum of Kshs 450,000/= paid on 29th November 2021 and 30th January 2017 was rent and not a deposit.
16. On re-examination, PW1 clarified that the lease was signed by both parties. He explained that the apparent interchange of signatures arose because the lessor signed on page 19 while the lessee signed on page 18 and he himself signed all pages of the lease. He maintained that there was no impropriety in the use of the same advocate by both parties.
17. Regarding the invoice, he stated that it related to repairs carried out on the leased godown. He reiterated that the sum of Kshs 450,000/= paid was rent and not deposit.
18. The above marked the close of the Plaintiff’s case.
19. DW1, Clifford Munya, a Director of the Defendant adopted his witness statement dated 14th July 2021 and produced the Defendant’s list and bundle of documents dated 13th July 2021. He testified that the Defendant company had two directors one of whom passed away prior to the alleged execution of the lease.
20. He stated that the Plaintiff had been the Defendant’s landlord for approximately one year and few months from February 2017 to end of July 2018. He denied signing the lease agreement and upon being referred to it, stated that the signatures therein were not his. He also stated that he does not know the attesting advocate and could not confirm who executed the agreement.
21. He stated that the Defendant vacated the premises at the end of July 2018 as the business had become expensive and unsustainable; and due to unfavorable conduct by the Plaintiff, including being denied access to the premises after the godowns were locked. He testified that he informed the caretaker, Samuel Thuranira, who acted as an intermediary between the parties, as well as the Plaintiff’s office, and was allowed to vacate by the caretaker and security personnel.
22. He testified that rent invoices were raised quarterly and stated that by the time the Defendant vacated, all rent had been paid, although payments were sometime paid irregularly. Referring to Plaintiff Exhibit 2, the Defendant’s statement of account, he acknowledged that it included legal fee for Kshs 139, 200/= but he stated that he did not know the basis of those charges. He further testified that in February 2019, the Plaintiff involved the police, who allegedly harassed him and compelled him to pay Kshs 100,000/= without a proper computation of statement of account. He maintained that the premises were left in a tenantable condition.
23. On cross-examination, DW1 confirmed that the signature on page 2 of his witness statement was his. When referred to the lease agreement, he acknowledged that the signature at the bottom of each page resembled his signature, but claimed that the signature on page 18 although similar, was not his.
24. He testified that he conducted a motor vehicle repair business in the godown and stated that he did not make any structural alteration to the premises. He confirmed that rent invoice were issued quarterly, although payments were sometimes made within the quarter. He stated that while the arrangement for quarterly payment of rent existed, it was not reduced in writing.
25. He testified that rent was paid through cheques and money transfer and maintained that there were no arrears at the time the Defendant vacated, although he had not produced bank statements and relied on the Plaintiff’s statement of account. He stated that parties did not agree on the duration of the tenancy,
26. Upon being referred to the lease document, he read out that the term ran from, 1st February 2017 up to 30th December 2022 with rent payable quarterly in advance, and that the agreement did not contain a termination clause. He stated that he gave three months’ notice at the beginning of the 2nd quarter and also informed the caretaker but admitted that he had not produced any evidence of such notice.
27. He acknowledged the Plaintiff’s statement of account as reflecting payments made and stated that any additional claim related to the fourth quarter. He maintained that his business did not damage the premises and that the caretaker inspected them before permitting him to vacate. He stated that the caretaker acted as the Plaintiff’s representative. He confirmed that the said caretaker is not before court as a witness.
28. Referring to Paragraph 4 of the statement of defence, he testified that the alleged acts of frustration including being denied access to premises when rent payment delayed and issues relating to water supply, which he communicated through the caretaker compelled him to vacate because of the acts of frustration and it became expensive. He also stated that he made payments totaling Kshs 500,000/= by cheques.
29. When referred again to the lease agreement, he denied the signature on page 18 was his and stated that he was unfamiliar with signature on page 19. He clarified that the Defendant company was the lessee and that the Plaintiff company was the lessor and disputed the Plaintiff’s explanation regarding the alleged interchange of signatures.
30. On re-examination, DW1 stated that he did not make any alterations or improvements to the premises. He explained that by the time he vacated, the next quarter beginning August had not commenced and that he never occupied the premise in that quarter. He stated that according to the Plaintiff’s statement of account, he had paid a cumulative amount of Kshs 450,000/=
31. He further stated that a contract is executed at the execution page and not merely by signatures at the bottom of each page and maintained that the lease was not properly executed. He reiterated that he dealt primarily with the caretaker, who operated from an office within the premises on behalf of the Plaintiff.
32. After the close of evidence, parties filed their respective submissions. The Plaintiff’s submissions are dated 10th September 2025 while the Defendant’s submissions are dated 11th February 2026.
Plaintiff’s submissions
33. The Plaintiff began its submissions with a brief background of the matter. Its case is founded on a written lease agreement executed on 1st February 2017 for a commercial godown, creating a fixed-term tenancy of six years without any provision for early termination. Pursuant to this agreement, the Defendant took possession of the premises and paid rent. However, on 8th September 2018, the Defendant allegedly vacated the premises abruptly, without notice or mutual agreement, well before the agreed expiry date of January 2023. Although the lease was registered on 20th September 2018 under the Land Registration Act, the Plaintiff maintains that both its contractual validity and subsequent registration render it binding and enforceable.
34. As a result of the Defendant’s premature exit, the Plaintiff claims rent arrears of Kshs.1,142,090/=, damages for breach of lease initially quantified as Kshs. 20,248,296/= for the unexpired term, and Kshs. 1,371,106/= incurred in restoring the premises after they were allegedly left in a dilapidated condition.
35. The Plaintiff identified two issues for determination; whether a valid lease agreement existed between the parties and whether there was a breach of the lease and if so, the appropriate remedies.
36. On the validity of the lease, the Plaintiff submits that the Defendant’s denial of execution is an afterthought unsupported by evidence. Although, the Defendant’s director disowned the signature on the lease, he failed to provide expert evidence, such as a forensic report, to substantiate the allegation of forgery. The Plaintiff points to the consistency of the signature across documents and urges the court to reject the denial.
37. Reliance is placed on the authority of Koinange & 13 others v Charles Karuga Koinange [1986] KEHC 3 (KLR), where the court held that allegations of forgery must meet a high evidentiary threshold and cannot be based on inconclusive or circumstantial claims. Further, the Plaintiff invokes Section 54 of the Land Registration Act arguing that registration creates a presumption of authenticity, thereby shifting the burden to the Defendant to disprove the lease. In support, it cites Doshi v Chemutut & 7 others (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR).
38. The Plaintiff also relies on Section 3(3) of the Law of Contract Act to argue that the lease was enforceable inter partes even prior to registration.
39. The Plaintiff further submits that the Defendant’s conduct taking possession, occupying the premises for 19 months and paying rent amounts to acceptance of the lease terms and gives rise to estoppel under Section 120 of the Evidence Act. Authorities relied on include Diamond Homes Limited v Shapi (Civil Appeal 118 of 2021) [2024] KECA 1161 and Busienei v Lizano Limited KEHC 4483 which emphasizes that a contract may be inferred from conduct demonstrating offer, acceptance, and consideration.
40. The Plaintiff also invokes the doctrine of equitable estoppel, arguing that the Defendant cannot deny the existence of the lease after benefiting from it. In this regard, reliance is placed on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR to support the principle that a party cannot approbate and reprobate. Similarly, Onyancha & another v Lagat (Civil Appeal E039 of 2022) [2025] KEELC 672 is cited to reinforce the position that a binding contract may arise from clear offer, acceptance and consideration and that a party who has enjoyed contractual benefits cannot later deny its existence. The Plaintiff contends that the Defendant’s failure to challenge the lease during the tenancy further weakens its position.
41. On the issue of breach, the Plaintiff submits that the Defendant fundamentally breached the lease by unilaterally vacating the premises in the absence of a break clause, 4 years and 5 months before expiry of the term. Reliance is placed on Kwanza Estates Limited v Jomo Kenyatta University of Agriculture & Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) where the Supreme Court held that unilateral termination of a lease without a termination clause constitutes a breach.
42. While acknowledging the duty to mitigate loss, the Plaintiff argues that mitigation was constrained because the premises were left in a dilapidated state and were of a specialised nature with limited demand. It further notes that in Kwanza Estates (Supra), the court declined to award rent for the entire unexpired term but instead granted compensatory damages equivalent to a reasonable re-letting period, of three months. Drawing from this reasoning, the Plaintiff urges the court to award damages equivalent to at least one quarter’s rent, consistent with the lease’s quarterly payment structure and the disruption caused by the premature termination.
43. Additionally, the Plaintiff submits that the Defendant breached its obligation to maintain the premises in good and tenantable condition, resulting in repair costs of Kshs. 1,371,106/=. In support, reliance is placed on Kenol Kobil PLC v Canarian Holdings Limited’ Canarian Holdings Limited (Plaintiff); Kenol Kobil PLC (Defendant) (Environment & Land Case 111 of 2019 [2023] KEELC 20945 (KLR) where the court awarded damages for failure to restore leased premises.
44. The Plaintiff emphasizes that the repair costs were specifically pleaded, supported by invoices and receipts and were not controverted by the Defendant. It also reiterates the claim for rent arrears of Kshs. 1,142,090/=, supported by a statement of account.
45. Finally, the Plaintiff seeks equitable relief in the form of specific performance, arguing that damages alone may not fully compensate for the loss of a structured rental income and the disruption caused. Reliance is placed on Gharib Suleman Gharib v Abdulrahman Mohamed Agil LLR No. 750 (CAK) Civil Appeal No. 112 of 1998 where the Court of Appeal held that specific performance may be granted where damages are inadequate to achieve complete justice.
46. In conclusion, the Plaintiff contends that the Defendant’s attempt to deny the lease is untenable in light of statutory provisions, case law, and equitable doctrines. It urges the court to uphold the sanctity of contracts by granting the remedies sought.
Defendant’s submissions
47. The Defendant’s submissions begin with brief background of the case. It opposes the Plaintiff’s claim in its entirety as set out in the Plaint dated 2nd September 2020. The Defendant frames the dispute around three key issues: whether the lease agreement dated 1st February 2017 is legally binding; whether any agreement existed between the parties and if so, whether the Defendant is in breach; and whether the Plaintiff is entitled to the reliefs sought.
48. On the first issue, the Defendant contends that the lease agreement dated 1st February 2017 is not legally binding as it was never executed by the Defendant. While admitting that it occupied the Plaintiff’s premises at Godown No. 2 on LR No. 12715/217 from around February 2017, the Defendant maintains that the tenancy was not governed by any written lease but arose in the absence of a signed agreement.
49. The Defendant asserts that although a draft lease was provided by the Plaintiff, it was never executed, and its terms cannot therefore be enforced. Reliance is placed on Section 37(2) of the Companies Act, 2015, which requires that a company executes a document either through two authorised signatories or by a director in the presence of a witness. The Defendant argues that the alleged lease does not meet this statutory requirement, as it was neither properly signed nor attested, and neither PW1 nor DW1 could identify the signatories.
50. The Defendant further challenges the credibility of the lease on the basis that it was registered on 20th November 2018 approximately one year and nine months after its alleged execution and three months after the Defendant had vacated the premises thereby suggesting bad faith on the part of the Plaintiff. On this basis, the Defendant submits that the lease is invalid, not binding and incapable of regulating parties’ relationship. Consequently, it argues that the tenancy falls within the ambit of a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, and that jurisdiction properly lies with the Business Premises Rent Tribunal rather than the court.
51. On the second issue, the Defendant submits that although no valid written agreement existed, there was an oral agreement under which it took possession of the premises and paid rent. It emphasizes that rent was paid monthly, despite invoices being issued quarterly, demonstrating that the arrangement was not governed by the alleged lease terms.
52. The Defendant argues that for a binding contract to exist, there must be offer, acceptance, and consideration, and an intention to create legal relations. In support, it relies on Omar Gorhan v Municipal Council of Malindi (Council Government of Kilifi) and Overlook Management Kenya Ltd [2020] eKLR, which cited Garvey v Richards (2011) JMCA 16 for the proposition that a contract must demonstrate intention, certainty and enforceable obligations.
53. While conceding that it intended to lease the premises and paid rent as consideration, the Defendant denies any intention to be bound by the specific terms of the unexecuted lease, as evidenced by its refusal to sign it. The Defendant therefore characterizes the arrangement as a periodic tenancy under Section 57 of the Land Act, specifically a month-to-month tenancy based on the pattern of monthly payments. It contends that it fully discharged its obligations under this arrangement and is not in breach.
54. The Defendant further alleges that it did not enjoy quiet possession, asserting that the Plaintiff’s conduct interfered with its use of the premises and ultimately forced it to vacate in August 2018. It states that prior to vacating, it settled all outstanding dues and informed the Plaintiff’s caretaker of its intention to leave.
55. The Defendant relies on the Plaintiff’s statement of account, which shows an outstanding balance of Kshs. 215,490/= as at 31st July 2018, but disputes the inclusion of legal fee of Kshs. 139,200/= on the basis that they were neither disclosed nor properly invoiced and were allegedly linked to the registration of an agreement that was never validly executed.
56. It further states that it made a payment of Kshs. 100,000/= in February 2019 following persistent demands, despite the actual balance being Kshs. 76,290/= thereby resulting in a credit in its favour. On this basis, the Defendant maintains that it is not in breach and that the Plaintiff is in fact indebted to it.
57. On the third issue regarding entitlement to reliefs, the Defendant submits that the Plaintiff is not entitled to any of the prayers sought. It relies on the decision in Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) to emphasize that damages for breach of contract are compensatory in nature and intended to restore the claimant to the position it would have been but for the breach, subject to the duty to mitigation loss.
58. The Defendant further submits that general damages are not awardable alongside special damages and that damages must be specifically pleaded and proved.
59. With respect to rent arrears, the Defendant disputes the claim of Kshs.1,142,090/= arguing that the Plaintiff improperly invoiced rent for the period covering August to October 2018 despite the Defendant having vacated in August 2018. It reiterates that as at 31st July 2018, the outstanding amount was Kshs. 215,490/= inclusive of the disputed legal fee of Kshs. 139,200/=.
60. The Defendant maintains that following its payment of Kshs. 100,000/= in February 2019, it had settled all legitimate dues. It also notes that the Plaintiff did not claim rent in lieu of notice which it argues supports its position that notice of termination was given to the caretaker. Accordingly, the Defendant contends that the claim for rent arrears is unmerited.
61. Regarding the claim for rent for the remainder of the lease term, the Defendant submits that it is not liable to pay rent for a period not contractually agreed upon, given the alleged invalidity of the lease. It further argues that even if the lease was valid it would be unconscionable to compel payment for the unexpired term after vacating, particularly in light of the Plaintiff’s alleged interference with its quiet enjoyment of the premises. Again, relying on Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR), the Defendant emphasizes that the appropriate remedy if any, would be limited to rent up to the date of vacating and reasonable damages for breach, rather than recovery of rent for the entire unexpired term.
62. On the claim for restoration costs of Kshs. 1,371,105/=, the Defendant denies liability, asserting that it left the premises in good and tenantable condition and did not carry out any alterations, as its business only required open space.
63. The Defendant challenges the evidentiary value of the Plaintiff’s documents, noting that the invoices refer generally to works carried out on a godown along Mombasa Road without specifying the particular unit occupied by the Defendant. It further contends that the invoices lack sufficient detail regarding the nature of the works, appear excessive, and are not supported by receipts evidencing actual payment. Additionally, it argues that there was no agreement obligating it to undertake renovations and that the Plaintiff has failed to discharge its burden of proof.
64. On the claim for general damages, the Defendant submits that such damages are not recoverable for breach of contract. It relies on Sundowner Lodge Limited v Kenya Tourist Development Corporation [2023] KECA 1131 (KLR), where the Court of Appeal affirmed that general damages are generally not ordinarily awardable for breach of contract except in exceptional circumstances. Further reliance is placed on Total (Kenya) Limited (formerly Caltex Oil Kenya Limited) v Janevams Limited [2015] KECA 822 (KLR) which reiterated that damages for breach of contract are generally quantifiable and therefore not general in nature.
65. In conclusion, the Defendant urges the court to find that the lease agreement is invalid, that the tenancy was periodic and properly terminated, that the Defendant is not in breach and that the Plaintiff has failed to prove its claims. Accordingly, it prays that the Plaint dated 2nd September 2020 be struck out with costs.
Analysis and Determination
66. I have carefully considered the pleadings, the oral and documentary evidence presented by both parties, as well as their respective submissions. In my view, the following issues arise for determination:
a.) Whether there existed a valid and binding lease agreement between the parties and the nature of the tenancy relationship;
b.) Whether the Defendant breached the terms governing that tenancy and if so, to what extent;
c.) Whether the Plaintiff is entitled to the reliefs sought.
Whether there existed a valid and binding lease agreement between the parties and the nature of the tenancy relationship
67. On this first issue, I have evaluated the competing positions advanced by the parties alongside the evidence on record.
68. The Plaintiff’s position is that a written lease agreement dated 1st February 2017 was duly executed between the parties and subsequently registered. In support of this position, the Plaintiff produced the lease document as an exhibit and maintained that it was signed by both parties and duly attested to by an advocate. The Plaintiff further submitted that the signatures appearing on the lease are consistent with those appearing on other documents attributable to the Defendant, and that the Defendant took possession of the premises and performed obligations under the lease, including payment of rent.
69. The Defendant, on the other hand, challenges the validity of the lease on the basis that its director did not sign the execution section of the agreement. The director contends that the signature appearing at the execution page is not his and that the absence of proper execution, the agreement is invalid. However, and quite significantly, the same director admitted during cross-examination that the signatures appearing at the bottom of the other pages of the lease are indeed his. This admission substantially undermines the credibility of the Defendant’s denial.
70. The law is well settled that the burden of proof lies on the party who asserts a particular fact. Sections 107 to 109 of the Evidence Act, requires that a party alleging invalidity, forgery or non-execution of a document must prove such allegations. This principle was articulated in Koinange & 13 others v Charles Karuga Koinange [1986] KEHC 3 (KLR) where the court emphasized that allegations of forgery or fraud cannot be founded on mere assertions or suspicion but must be supported by cogent and credible evidence.
71. In the present case, the Defendant, beyond denying the signature, has not placed before this court any expert evidence, such as a forensic document examiner’s report, to support the contention that the signature on the execution page is not his. Nor did the Defendant call the attesting advocate or any other witness to challenge the authenticity of the lease. The Defendant’s witness having later conceded to signing the rest of the pages save the execu
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