(Being an appeal against the Judgment of the Rent Restriction Tribunal at Nairobi (Hon. Hillary K. Korir, Chairperson) delivered on 10th December 2024 in Nairobi Rent Restriction Case No. 90 of 2016; Wilberforce Nadida v Paul Otiende)
1. This is an appeal against the judgment of the Rent Restriction Tribunal at Nairobi ("the Tribunal") delivered on 10th December 2024 by its Chairperson, Hon. Hillary K. Korir, in Nairobi Rent Restriction Case No. 90 of 2016; Wilberforce Nadida v Paul Otiende.
2. The dispute concerns residential premises known as House No. S4 erected on Plot No. Nairobi/Block 62/203, Fort Jesus Estate, Kibera ("the suit premises"). The Respondent is the owner and landlord of the suit premises and the Appellant has at all times material to this appeal been his tenant. According to the Appellant, the tenancy commenced in December 2006 at a monthly rent of Kshs 5,000/= which was subsequently increased to Kshs 10,000/=. The Respondent for his part maintained that the tenancy commenced in the year 2008 at a monthly rent of Kshs 10,000/=, although his own Plaint pleaded that the Appellant had been his tenant "since 10 years ago", which would place the commencement of the tenancy in or about the year 2006. What is common ground is that the monthly rent payable at all times material to this appeal was Kshs 10,000/= and that the tenancy had subsisted for many years before the suit was instituted.
The proceedings before the Tribunal
3. By a Plaint dated 27th January 2016 the Respondent, then acting in person, sued the Appellant before the Tribunal. He pleaded that the Appellant had been paying rent in instalments up to September 2015 and that thereafter no rent had been received from him whatsoever, in consequence whereof the arrears had accrued to Kshs 40,000/= as at January 2016. He prayed for (a) vacant possession; (b) recovery of arrears amounting to Kshs 40,000/= and an electricity bill consumed amounting to Kshs 10,063.70; (c) costs of the suit; and (d) any other relief. When the matter first came before the Tribunal on 28th January 2016 the Respondent stated that the Appellant was in rent arrears of Kshs 40,000/=, being four months’ rent.
4. On 18th July 2017 the Respondent took out a Notice of Motion seeking leave to levy distress for rent arrears then stated to be Kshs 250,000/=, access to a second unit on the suit premises said to be locked, vacant possession, and the pulling down of semi-permanent structures allegedly erected upon the property. On 19th July 2017 the Tribunal granted prayers 1, 2 and 3 of that application ex parte, directed that the application be served for inter partes hearing on the issue of vacant possession within fourteen days, and ordered the OCS Milimani to provide security.
5. On 21st November 2017, when the application came up for hearing, the Tribunal directed that it be served upon the Appellant to enable him respond, and further ordered that "in the meantime Tenant is to continue paying rent as usual." It is not in dispute that the Appellant thereafter paid the monthly rent of Kshs 10,000/= throughout the pendency of the suit. For the sake of accuracy I record that the direction to continue paying rent was made on 21st November 2017 and not on 19th July 2017.
6. Pursuant to an order of the Tribunal, a Rent Inspector, one David Onyango Obuba, inspected the suit premises on 16th February 2018 and filed a report of even date. He confirmed that the other unit was locked with one padlock but stated in terms that he was unable to confirm whether the said unit had been locked by the Appellant.
7. The Appellant filed a Statement of Defence and Counterclaim dated 6th May 2019 and filed on 8th May 2019 through the firm of Winnie A. Kungu, Advocate. He denied being in any rent arrears and averred that he had paid all rent due into the Respondent’s bank accounts at Standard Chartered Bank and thereafter at Barclays Bank (now ABSA Bank). He averred that by an exchange of letters dated 5th January 2008 and 7th January 2008 the Respondent had allowed him to repair the wooden door and the fence which had exposed the house to insecurity, and that by a further exchange of letters dated 10th April 2015 and 17th April 2015 the Respondent, having failed to keep the house in a proper state of repair, had allowed him to carry out the renovations and to render the invoice, in each case upon terms that the amount expended would be deducted from the rent payable. He counterclaimed the sum of Kshs 407,170/= being the cost of the said repairs and improvements, a declaration that he was not indebted to the Respondent in any rent, costs and interest.
8. It is common ground, and the record confirms, that the Respondent never filed a Reply to Defence or a Defence to Counterclaim.
The criminal proceedings
9. The documents exchanged between the parties became the subject of two criminal prosecutions before the court at Kibera, the certified proceedings and judgments in both of which form part of the record of appeal.
10. In Criminal Case No. 1598 of 2019; Republic v Paul Otiende , instituted upon the Respondent’s complaint, the Appellant was charged with forgery of the lease agreement dated 1st December 2006 which he had filed before the Tribunal. The investigating officer testified that he recovered the lease agreement and the tenancy agreement and subjected them to document examination together with specimen writings supplied by the Respondent. PW4, IP Everlyne Othim, a document examiner attached to the DCI headquarters, testified that she and her colleagues "were required to examine two signatures in two different documents", namely the lease agreement and the tenancy agreement relating to the suit premises. She concluded that the signature on the lease agreement and the Respondent’s specimen signatures were made by different authors, and that the signature on the tenancy agreement and the Respondent’s specimen signatures were made by the same author.
11. By a judgment delivered on 16th February 2023, Hon. P. Mutua, Senior Principal Magistrate, acquitted the Appellant under Section 215 of the Criminal Procedure Code . The learned Magistrate held that the document produced was an uncertified photocopy in respect of which no foundation for the reception of secondary evidence had been laid; that although the document examiner had established that the lease agreement was not signed by the complainant as purported, and was "forged in that sense", there was no evidence that it was the Appellant who prepared or signed it; and that there was no evidence of an intention to deceive, the lease agreement having been in accordance with the terms actually agreed by the parties as to both rent and duration. The learned Magistrate further observed that the Respondent had not been truthful in alleging that the Appellant became his tenant in 2008, he having admitted in the companion prosecution that the Appellant had been his tenant since 2006, and the Appellant having produced deposit slips consistent with that earlier date.
12. In Criminal Case No. E1127 of 2020; Republic v Wilberforce Nadida , the Respondent was charged on three counts of forgery, making a false document without lawful authority and uttering a false document, all relating to a tenancy agreement dated 30th December 2014 upon which he relied. By a judgment delivered on 18th August 2022 the same court acquitted him under Section 215 of the Criminal Procedure Code , holding that although the document examiner had established that the tenancy agreement was not signed by the Appellant as purported, there was no evidence that the Respondent forged it or knew it to be forged, his explanation that he prepared the document and took it to the Appellant for signature having remained unshaken in cross-examination.
13. The outcome of the two prosecutions is therefore even-handed. The principal document relied upon by each party was found not to bear the signature of the person whose signature it purported to bear, and each party was acquitted for want of proof that he was the author of the forgery and for want of any intention to deceive. The prosecutions accordingly assist neither party in the civil dispute.
14. Of greater moment to this appeal is what the prosecutions did not touch. Neither the letters dated 5th January 2008, 7th January 2008, 10th April 2015 and 17th April 2015, nor the invoices dated 11th January 2008, 10th February 2008 and 21st May 2015 being the documents upon which the Counterclaim rests was the subject of any charge in either prosecution, and none of them was placed before the document examiner in either case. To the extent that it was urged before me that six of the Appellant’s documents were subjected to forensic examination and that the prosecution thereafter elected to prefer no charge in respect of the letters and the invoices, that submission is not borne out by the certified record, which establishes that two documents only were examined. I make the point because the correct position, as will appear, is of some consequence to the treatment of the Counterclaim.
The earlier interlocutory appeal
15. On 12th October 2021 the Tribunal directed that the suit be canvassed by way of written submissions. That direction was the subject of ELC Appeal No. 12 of 2022; Paul Otiende v Wilberforce Nadida . By a judgment delivered by this Court on 20th December 2022 the appeal was dismissed on the ground that it had not been properly filed, but the Court expressly held that the Tribunal had erred in directing that the matter proceed by way of written submissions, submissions not being evidence. Following that judgment the Tribunal, by consent recorded on 21st August 2023, directed that the suit proceed to a full hearing to enable the parties adduce evidence and call witnesses.
The evidence at the trial
16. The suit was heard orally on 7th May 2024 and 9th May 2024. Before turning to the evidence I observe that the typed proceedings are not in every respect sequentially arranged, the evidence of the two witnesses appearing in places to be interleaved. The attribution of the material passages is nonetheless plain from their content, and I have approached the record on that footing.
17. The Respondent testified as PW1. He stated that he is a retiree since the year 2000 and the owner of the suit premises; that Kibera was affected by the post-election violence and there was then no perimeter wall; that there was one metal door installed by the tenant and also a metal gate but that he never gave consent as per the letters appearing at pages 74 to 80 of the Appellant’s bundle; that he disputed that the Appellant had replaced the roof; that the issue of forgery was not proved; and that there were, in his view, no wear and tear.
18. On re-examination the Respondent stated: "I have not completed the arrears and cannot tell if it is 10,000/=. I want vacant possession." The word rendered in the typed record as "completed" can, in its context, only have been "computed". He added that there was a mabati fence and that the Appellant had constructed illegal structures which he rented out without authority; that there was a metallic door and not a gate and he did not know who fixed it; that the main gate was erected by all the landlords; that he never gave authority for any repairs and did not prepare the letters; and that he was not aware of any roof damage at all, though there was wear and tear which he would have replaced had he been asked.
19. On cross-examination he stated that, other than payment of rent, he needed to occupy the premises with his family, and that of the two main doors one had been constructed without his permission.
20. The Appellant testified as DW1. He adopted his Statement of Defence and Counterclaim, his witness statement and his bundle of documents. He testified that he had improved the house to habitable standards; that he did not lock the other unit; that he had previously been paying Kshs 5,000/= which was increased to Kshs 10,000/=; that he never refused to pay the increased rent; that he was ordered to pay Kshs 10,000/= pending the hearing of the suit and had done so for eight years to date; that he did not have a problem paying rent; that he used Kshs 407,000/= to improve the house with the consent of the landlord, the amount to be recovered from future rent; that by letter dated 5th January 2008 he wrote requesting to put up a fence, a gate and metal doors, to which the Respondent responded in January 2008, whereupon he carried out repairs for Kshs 90,000/=; that in April 2015 he wrote requesting authority to repair the roof, to which the Respondent consented on 17th April 2015; that he had no objection to a site inspection to confirm the repairs; that the total cost of the repairs came to Kshs 407,170/=; that there was no illegal structure; and that electricity is by token and he pays as per use.
21. Of central importance, the Appellant testified as follows:
"On 15/9/2015 I paid 10,000 on 3/3/2016 I paid 40,000 to go towards the arrears (not disputed).
I have no problem paying the balance of 10,000/=."
22. He added that he had no problem continuing to pay rent as he sought orders for the amount utilised for repairs; that efforts to resolve the matter through alternative dispute resolution had been fruitless; and that it would not be fair to evict him and give the premises to another tenant.
23. On cross-examination the Appellant stated that he was admitted as an advocate on 8th March 2024 and was previously a contractor; that there was no one in the other unit and he was not responsible for its non-occupation, the previous tenant not having handed over the keys and a padlock being on the door; that the tenancy agreement dated 26th November 2008 placed responsibility for repairs on the tenant; that he had been in arrears prior to 2015; that rent was deposited in the landlord’s bank account; that there were rent arrears; and that it was not true that there was an accumulated amount of 512,185. On re-examination he stated that he was a tenant from 2006; that Rowlands was receiving rent as his landlord; that he had been in occupation for 216 months; that the rent claimed was 40,000 only and the previous years were contested; and that he did not pay the 250,000 as it was not served on him and no distress was levied in respect of the same.
24. The Respondent gave further evidence in the course of the same hearing, stating that the Appellant was his tenant as per the tenancy agreement dated 26th November 2008; that there were arrears owing by the time of filing of Kshs 40,000/= which remained unpaid to date and that there were no further accruals; that the other unit remained locked; and that the Appellant pays Kshs 10,000/= per month. Under cross-examination by the Appellant’s counsel, however, he made the following admissions, which lie at the very heart of this appeal:
"The claim of 40,000 is from September 2015 to January 2016.
The tenant has since paid rent up to date. In March 2016, 40,000 was paid being rent plus arrears of 30,000. The tenancy is implied month to month. The tenant has paid rent to date."
25. In the same cross-examination the Respondent further conceded that the Rent Inspector’s report did not confirm who locked the premises; that the previous tenant left in 2016 and he came to know two months later; that the issue in respect of the unoccupied unit was not pleaded; that the documents produced by the Appellant were invoices and not receipts and that he "would have a problem with assessment"; that the entire estate is not fenced; and that he had no objection to inspection by a tribunal officer.
26. The Appellant produced in support of his case bank deposit slips occupying pages 195 to 375 of the record of appeal, being deposits made by him to the accounts of the Respondent and, in the earliest period, of the Respondent’s son Rowlands Nadida, spanning the period December 2006 to May 2024.
The Judgment of the Tribunal
27. In its judgment delivered on 10th December 2024 the Tribunal framed three issues for determination, namely: whether the tenant was in rent arrears and how much; whether the tenant undertook repairs and was entitled to offset the same from the rent; and whether the tenant should deliver vacant possession to the landlord.
28. On the first issue the Tribunal correctly directed itself that the landlord bore the legal burden of proving that the tenant was in actual rent arrears, citing Sections 107(1) and 109 of the Evidence Act . It then disposed of the issue in a single sentence: "Other than the alleged rent arrears of 512,185,000 (the full particulars which were not provided). The plaintiff/Tenant admitted having arrears of 20000 and not 40,000 as stated by the Plaintiff." Beyond recording that admission the Tribunal entered judgment for no sum at all, made no finding upon the balance of the pleaded claim, and did not address the Respondent’s admissions in cross-examination.
29. On the second issue the Tribunal held that the purported agreement and letters relied upon by the tenant "were subject of criminal proceedings which yielded no fruit on the genuineness or otherwise and hence unreliable." No finding whatsoever was made upon the quantum of the repairs or upon the Counterclaim.
30. On the third issue the Tribunal invoked Article 40 of the Constitution and, relying upon the decision in De Fransesco v Barnum (1890) 45 Ch.D 430 as cited in Communication Workers Union of Kenya v Telkom (K) Ltd & 2 Others (2006) eKLR , held as follows:
"Basing on the above case, this Tribunal shall not sustain the tenancy as that shall aid the conversion of a contract of personal service into a contract of slavery."
31. The Tribunal thereafter cited Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR upon the position of a tenant holding over demised premises, and made the following final orders:
"i. The Plaintiff/Tenant is to deliver vacant possession within 60 days subject to payment of rent up to then.
ii. The alleged cost and repairs (if any) is to be offset from the alleged rent arrears owed.
iii. Each party is to bear his own costs of the suit."
The appeal
32. Aggrieved by the said judgment the Appellant preferred the instant appeal vide a Memorandum of Appeal dated 7th January 2025 raising eight grounds which may be summarised as follows: that the Chairperson erred in law by allowing himself to be influenced by the Respondent’s personal feelings towards the Appellant rather than by the contractual obligations of the parties, the Respondent having admitted that the Appellant had been paying rent consistently and was up to date at the time of the hearing, and by holding that sustaining the tenancy would convert a contract of personal service into a contract of slavery; that he misdirected himself in dismissing the Appellant’s documentary evidence as unreliable on the basis that it was the subject of criminal proceedings which yielded no fruit, without any evidence in support of that conclusion; that he rendered an ambiguous decision by ordering that the alleged cost of repairs be offset from the alleged rent arrears without determining how much was owed on either account; that he failed to consider and grant the Appellant’s Counterclaim for the refund of the repair costs despite the evidence on record; that he failed to apply the principles governing the grant of vacant possession under the Rent Restriction Act, Cap 296 ; that he disregarded the evidence, pleadings and submissions on record and analysed the matter upon facts that were largely his own creation; that on the whole he failed to apply his mind properly to the facts before him; and that he was outrightly biased against the Appellant.
33. The Appellant accordingly prayed that the appeal be allowed, the judgment of the Tribunal be set aside, judgment be entered in his favour in terms of his Counterclaim, and that the costs of the appeal be borne by the Respondent.
34. Before the appeal could be heard on its merits the Respondent took out a Notice of Motion dated 2nd March 2026 together with a Notice of Preliminary Objection of even date. Vide the ruling delivered on 22 nd April 2026, the Court accordingly dismissed both the Preliminary Objection and the Notice of Motion, directed the Appellant to file and serve his record of appeal within thirty days in default whereof the appeal would stand dismissed, and ordered that the costs of the application and of the objection be in the cause. The Appellant complied, the record of appeal together with the supplementary record being dated 21st May 2026 and duly filed.
35. It follows that the questions whether the appeal has been overtaken by events and whether the substratum of the dispute survives were not disposed of by the ruling of 22nd April 2026 but were deliberately reserved to this judgment. I return to them in the analysis which follows.
The Appellant’s submissions
36. The Appellant, acting in person, filed written submissions dated 10th June 2026. He began by tracing the background of the dispute. He submitted that the Respondent’s claim as pleaded was a modest one, being four months’ arrears of Kshs 40,000/= together with an electricity bill of Kshs 10,063.70, and contended that he was never served with the Plaint dated 27th January 2016. He further submitted that the tenancy agreement annexed to the Respondent’s Notice of Motion dated 18th July 2017 bore anomalies on its face, the same having been indicated as made on 26th November 2008 but signed on 30th December 2014, some six years later and after the expiry date of 7th December 2014 indicated in clause 1 thereof. He also contended that the ex parte orders granted on 19th July 2017 lapsed by dint of the Respondent’s failure to prosecute the application inter partes as contemplated by Order 40 Rules 4, 5 and 6 of the Civil Procedure Rules .
37. The Appellant then narrated the history of the criminal proceedings, highlighting the findings of the court at Kibera in its judgment of 16th February 2023, namely that he had been paying rent of Kshs 5,000/= since December 2006 before the same was increased to Kshs 10,000/=; that the only reason he included the lease agreement in the Tribunal case was to show the history of the parties’ relationship; and that there was not, and could not have been, an intention to deceive or defraud since all the terms of the lease were as agreed by the parties. He emphasised that he was acquitted and that neither the Respondent nor the prosecution appealed. He noted that the Respondent was likewise acquitted in Criminal Case No. E1127 of 2020 in respect of the tenancy agreement upon which the Respondent had relied. He thereafter identified seven issues for determination which substantially mirror his grounds of appeal.
38. On the first issue, being the ambiguity of the Tribunal’s decision, the Appellant submitted that the Tribunal ordered an offset of the alleged cost of repairs against the alleged rent arrears without determining how much, if any, was owed in repair costs, how much, if any, was owed in rent arrears, and what net balance was payable to either party. He submitted that a valid judgment or decree must be clear, precise and capable of execution without requiring the parties to speculate or to undertake further calculations, and relied upon Ole Nganai v Arap Bor (1983) KLR 233 where the Court of Appeal held that a judgment or order which is nebulous, indefinite and uncertain is incapable of supporting a sensible decree and renders subsequent proceedings a nullity, the Court stating:
"I am of the opinion that both the proceedings and the result reached by the judge were a nullity, his order being meaningless. The preliminary issue decided by the judge does not amount to a settlement at all."
39. He further submitted that the Respondent himself admitted at trial that the Appellant was not in rent arrears since the filing of the suit in January 2016; that he produced bank deposit slips covering eighteen years of tenancy to which no contrary evidence was adduced; and that the Tribunal’s failure to make a specific finding upon that admission was a fatal error which of itself warrants the setting aside of the judgment.
40. On the second issue, being the introduction of new evidence through submissions, the Appellant submitted that the Respondent’s submissions before the Tribunal introduced entirely new prayers and factual allegations not pleaded in the Plaint, namely the claim for rent arrears of Kshs 512,185,000/=, special damages for restitution, general damages for pain and suffering, and rent of Kshs 25,000/= per month for the second unit. He submitted that no evidence was led at the hearing to prove any of the said items and that what has not been established at an inter partes hearing cannot later be raised as fact or evidence in submissions. He relied upon Erastus Wade Opande v Kenya Revenue Authority & Another, Kisumu HCCA No. 46 of 2007 and Nancy Wambui Gatheru v Peter Wanjere Ngugi, Nairobi HCCC No. 36 of 1993 , both as quoted by this Court in the earlier appeal between the same parties, and on Ng’ang’a & Another v Owiti & Another [2008] 1 KLR (EP) 749 . He placed particular reliance on the dictum of Odunga, J (as he then was) in Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR where the learned Judge stated:
"Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions."
41. The Appellant further cited Ole Nganai v Arap Bor (supra) for the additional proposition that it is wrong for a court to grant to a party an order which had not been asked for by that party either in the pleadings or during the trial.
42. On the third and fourth issues, concerning the Counterclaim and the treatment of his documentary evidence, the Appellant submitted that his Counterclaim was supported by uncontroverted documentary evidence comprising the letters of 5th January 2008, 7th January 2008, 10th April 2015 and 17th April 2015 together with the invoices dated 11th January 2008, 10th February 2008 and 21st May 2015, and that the Tribunal dismissed the said evidence upon a speculative ground. He submitted that a trial court must consider all the evidence on record and cannot dismiss it without a proper basis, and that dismissing evidence in that manner violates the right to a fair hearing under Article 50 of the Constitution . He relied upon John Peter Kamau Ruhangi v Kenya Reinsurance Corporation [2012] KECA 7 (KLR) where the Court of Appeal, addressing a trial court’s failure to consider a counterclaim, held:
"The Respondent claimed that sum in the counter-claim. If Justice Aganyanya had considered that claim, as he was under duty to do, in view of the evidence on record, he would have had no choice but to grant it."
43. He also relied upon Mbogo & Another v Shah [1968] EA 93 for the proposition that an appellate court will interfere where the trial court misdirected itself or acted upon matters which it should not have acted upon, or failed to take into consideration matters which it should have taken into consideration, and in so doing arrived at a wrong conclusion.
44. On the misdirection concerning the criminal proceedings, the Appellant submitted that the Tribunal’s statement that his documents were the subject of criminal proceedings which yielded no fruit on their genuineness was both factually incorrect and legally flawed. Factually, the criminal proceedings did yield fruit in that he was acquitted. Legally, a criminal acquittal does not render civil evidence unreliable, the standard of proof in criminal cases being higher than in civil cases. He further submitted that where a party fails to adduce evidence in rebuttal the court is entitled to accept the unrebutted evidence as truthful.
45. On the issues of failure to apply his mind to the facts and of bias, the Appellant submitted that his evidence of rent payments spanning eighteen years was uncontroverted; that the Respondent admitted at trial that he was not in arrears since 2016, yet the Tribunal made no finding on rent arrears; that the Chairperson misapplied the principle in De Fransesco v Barnum , which applies to contracts of personal service such as employment and not to tenancies; and that the totality of the record suggests bias against him. He relied upon R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119 on apparent bias, and invoked Article 50(1) of the Constitution .
46. On the grant of vacant possession, the Appellant submitted that the Respondent did not prove any of the grounds provided under Section 14(1) of the Rent Restriction Act , Cap 296, having proved neither rent arrears, nuisance, illegal use nor personal requirement, and that a protected tenant enjoys statutory security of tenure and cannot be evicted merely because the landlord wishes to recover possession. He relied upon Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd [1996] eKLR on the strictly circumscribed right of a landlord to recover possession of premises governed by rent restriction legislation.
47. On the Counterclaim, the Appellant submitted that the same was supported by the express written authorities of the Respondent, invoices from contractors and his uncontroverted testimony that the repairs were undertaken. He submitted that the Respondent filed no Defence to the Counterclaim and invoked Order 7 Rule 4 of the Civil Procedure Rules , contending that even without a formal application for judgment thereunder the trial court remained obligated to evaluate the Counterclaim on its me
[...truncated]
1. This is an appeal against the judgment of the Rent Restriction Tribunal at Nairobi ("the Tribunal") delivered on 10th December 2024 by its Chairperson, Hon. Hillary K. Korir, in Nairobi Rent Restriction Case No. 90 of 2016; Wilberforce Nadida v Paul Otiende.
2. The dispute concerns residential premises known as House No. S4 erected on Plot No. Nairobi/Block 62/203, Fort Jesus Estate, Kibera ("the suit premises"). The Respondent is the owner and landlord of the suit premises and the Appellant has at all times material to this appeal been his tenant. According to the Appellant, the tenancy commenced in December 2006 at a monthly rent of Kshs 5,000/= which was subsequently increased to Kshs 10,000/=. The Respondent for his part maintained that the tenancy commenced in the year 2008 at a monthly rent of Kshs 10,000/=, although his own Plaint pleaded that the Appellant had been his tenant "since 10 years ago", which would place the commencement of the tenancy in or about the year 2006. What is common ground is that the monthly rent payable at all times material to this appeal was Kshs 10,000/= and that the tenancy had subsisted for many years before the suit was instituted.
The proceedings before the Tribunal
3. By a Plaint dated 27th January 2016 the Respondent, then acting in person, sued the Appellant before the Tribunal. He pleaded that the Appellant had been paying rent in instalments up to September 2015 and that thereafter no rent had been received from him whatsoever, in consequence whereof the arrears had accrued to Kshs 40,000/= as at January 2016. He prayed for (a) vacant possession; (b) recovery of arrears amounting to Kshs 40,000/= and an electricity bill consumed amounting to Kshs 10,063.70; (c) costs of the suit; and (d) any other relief. When the matter first came before the Tribunal on 28th January 2016 the Respondent stated that the Appellant was in rent arrears of Kshs 40,000/=, being four months’ rent.
4. On 18th July 2017 the Respondent took out a Notice of Motion seeking leave to levy distress for rent arrears then stated to be Kshs 250,000/=, access to a second unit on the suit premises said to be locked, vacant possession, and the pulling down of semi-permanent structures allegedly erected upon the property. On 19th July 2017 the Tribunal granted prayers 1, 2 and 3 of that application ex parte, directed that the application be served for inter partes hearing on the issue of vacant possession within fourteen days, and ordered the OCS Milimani to provide security.
5. On 21st November 2017, when the application came up for hearing, the Tribunal directed that it be served upon the Appellant to enable him respond, and further ordered that "in the meantime Tenant is to continue paying rent as usual." It is not in dispute that the Appellant thereafter paid the monthly rent of Kshs 10,000/= throughout the pendency of the suit. For the sake of accuracy I record that the direction to continue paying rent was made on 21st November 2017 and not on 19th July 2017.
6. Pursuant to an order of the Tribunal, a Rent Inspector, one David Onyango Obuba, inspected the suit premises on 16th February 2018 and filed a report of even date. He confirmed that the other unit was locked with one padlock but stated in terms that he was unable to confirm whether the said unit had been locked by the Appellant.
7. The Appellant filed a Statement of Defence and Counterclaim dated 6th May 2019 and filed on 8th May 2019 through the firm of Winnie A. Kungu, Advocate. He denied being in any rent arrears and averred that he had paid all rent due into the Respondent’s bank accounts at Standard Chartered Bank and thereafter at Barclays Bank (now ABSA Bank). He averred that by an exchange of letters dated 5th January 2008 and 7th January 2008 the Respondent had allowed him to repair the wooden door and the fence which had exposed the house to insecurity, and that by a further exchange of letters dated 10th April 2015 and 17th April 2015 the Respondent, having failed to keep the house in a proper state of repair, had allowed him to carry out the renovations and to render the invoice, in each case upon terms that the amount expended would be deducted from the rent payable. He counterclaimed the sum of Kshs 407,170/= being the cost of the said repairs and improvements, a declaration that he was not indebted to the Respondent in any rent, costs and interest.
8. It is common ground, and the record confirms, that the Respondent never filed a Reply to Defence or a Defence to Counterclaim.
The criminal proceedings
9. The documents exchanged between the parties became the subject of two criminal prosecutions before the court at Kibera, the certified proceedings and judgments in both of which form part of the record of appeal.
10. In Criminal Case No. 1598 of 2019; Republic v Paul Otiende , instituted upon the Respondent’s complaint, the Appellant was charged with forgery of the lease agreement dated 1st December 2006 which he had filed before the Tribunal. The investigating officer testified that he recovered the lease agreement and the tenancy agreement and subjected them to document examination together with specimen writings supplied by the Respondent. PW4, IP Everlyne Othim, a document examiner attached to the DCI headquarters, testified that she and her colleagues "were required to examine two signatures in two different documents", namely the lease agreement and the tenancy agreement relating to the suit premises. She concluded that the signature on the lease agreement and the Respondent’s specimen signatures were made by different authors, and that the signature on the tenancy agreement and the Respondent’s specimen signatures were made by the same author.
11. By a judgment delivered on 16th February 2023, Hon. P. Mutua, Senior Principal Magistrate, acquitted the Appellant under Section 215 of the Criminal Procedure Code . The learned Magistrate held that the document produced was an uncertified photocopy in respect of which no foundation for the reception of secondary evidence had been laid; that although the document examiner had established that the lease agreement was not signed by the complainant as purported, and was "forged in that sense", there was no evidence that it was the Appellant who prepared or signed it; and that there was no evidence of an intention to deceive, the lease agreement having been in accordance with the terms actually agreed by the parties as to both rent and duration. The learned Magistrate further observed that the Respondent had not been truthful in alleging that the Appellant became his tenant in 2008, he having admitted in the companion prosecution that the Appellant had been his tenant since 2006, and the Appellant having produced deposit slips consistent with that earlier date.
12. In Criminal Case No. E1127 of 2020; Republic v Wilberforce Nadida , the Respondent was charged on three counts of forgery, making a false document without lawful authority and uttering a false document, all relating to a tenancy agreement dated 30th December 2014 upon which he relied. By a judgment delivered on 18th August 2022 the same court acquitted him under Section 215 of the Criminal Procedure Code , holding that although the document examiner had established that the tenancy agreement was not signed by the Appellant as purported, there was no evidence that the Respondent forged it or knew it to be forged, his explanation that he prepared the document and took it to the Appellant for signature having remained unshaken in cross-examination.
13. The outcome of the two prosecutions is therefore even-handed. The principal document relied upon by each party was found not to bear the signature of the person whose signature it purported to bear, and each party was acquitted for want of proof that he was the author of the forgery and for want of any intention to deceive. The prosecutions accordingly assist neither party in the civil dispute.
14. Of greater moment to this appeal is what the prosecutions did not touch. Neither the letters dated 5th January 2008, 7th January 2008, 10th April 2015 and 17th April 2015, nor the invoices dated 11th January 2008, 10th February 2008 and 21st May 2015 being the documents upon which the Counterclaim rests was the subject of any charge in either prosecution, and none of them was placed before the document examiner in either case. To the extent that it was urged before me that six of the Appellant’s documents were subjected to forensic examination and that the prosecution thereafter elected to prefer no charge in respect of the letters and the invoices, that submission is not borne out by the certified record, which establishes that two documents only were examined. I make the point because the correct position, as will appear, is of some consequence to the treatment of the Counterclaim.
The earlier interlocutory appeal
15. On 12th October 2021 the Tribunal directed that the suit be canvassed by way of written submissions. That direction was the subject of ELC Appeal No. 12 of 2022; Paul Otiende v Wilberforce Nadida . By a judgment delivered by this Court on 20th December 2022 the appeal was dismissed on the ground that it had not been properly filed, but the Court expressly held that the Tribunal had erred in directing that the matter proceed by way of written submissions, submissions not being evidence. Following that judgment the Tribunal, by consent recorded on 21st August 2023, directed that the suit proceed to a full hearing to enable the parties adduce evidence and call witnesses.
The evidence at the trial
16. The suit was heard orally on 7th May 2024 and 9th May 2024. Before turning to the evidence I observe that the typed proceedings are not in every respect sequentially arranged, the evidence of the two witnesses appearing in places to be interleaved. The attribution of the material passages is nonetheless plain from their content, and I have approached the record on that footing.
17. The Respondent testified as PW1. He stated that he is a retiree since the year 2000 and the owner of the suit premises; that Kibera was affected by the post-election violence and there was then no perimeter wall; that there was one metal door installed by the tenant and also a metal gate but that he never gave consent as per the letters appearing at pages 74 to 80 of the Appellant’s bundle; that he disputed that the Appellant had replaced the roof; that the issue of forgery was not proved; and that there were, in his view, no wear and tear.
18. On re-examination the Respondent stated: "I have not completed the arrears and cannot tell if it is 10,000/=. I want vacant possession." The word rendered in the typed record as "completed" can, in its context, only have been "computed". He added that there was a mabati fence and that the Appellant had constructed illegal structures which he rented out without authority; that there was a metallic door and not a gate and he did not know who fixed it; that the main gate was erected by all the landlords; that he never gave authority for any repairs and did not prepare the letters; and that he was not aware of any roof damage at all, though there was wear and tear which he would have replaced had he been asked.
19. On cross-examination he stated that, other than payment of rent, he needed to occupy the premises with his family, and that of the two main doors one had been constructed without his permission.
20. The Appellant testified as DW1. He adopted his Statement of Defence and Counterclaim, his witness statement and his bundle of documents. He testified that he had improved the house to habitable standards; that he did not lock the other unit; that he had previously been paying Kshs 5,000/= which was increased to Kshs 10,000/=; that he never refused to pay the increased rent; that he was ordered to pay Kshs 10,000/= pending the hearing of the suit and had done so for eight years to date; that he did not have a problem paying rent; that he used Kshs 407,000/= to improve the house with the consent of the landlord, the amount to be recovered from future rent; that by letter dated 5th January 2008 he wrote requesting to put up a fence, a gate and metal doors, to which the Respondent responded in January 2008, whereupon he carried out repairs for Kshs 90,000/=; that in April 2015 he wrote requesting authority to repair the roof, to which the Respondent consented on 17th April 2015; that he had no objection to a site inspection to confirm the repairs; that the total cost of the repairs came to Kshs 407,170/=; that there was no illegal structure; and that electricity is by token and he pays as per use.
21. Of central importance, the Appellant testified as follows:
"On 15/9/2015 I paid 10,000 on 3/3/2016 I paid 40,000 to go towards the arrears (not disputed).
I have no problem paying the balance of 10,000/=."
22. He added that he had no problem continuing to pay rent as he sought orders for the amount utilised for repairs; that efforts to resolve the matter through alternative dispute resolution had been fruitless; and that it would not be fair to evict him and give the premises to another tenant.
23. On cross-examination the Appellant stated that he was admitted as an advocate on 8th March 2024 and was previously a contractor; that there was no one in the other unit and he was not responsible for its non-occupation, the previous tenant not having handed over the keys and a padlock being on the door; that the tenancy agreement dated 26th November 2008 placed responsibility for repairs on the tenant; that he had been in arrears prior to 2015; that rent was deposited in the landlord’s bank account; that there were rent arrears; and that it was not true that there was an accumulated amount of 512,185. On re-examination he stated that he was a tenant from 2006; that Rowlands was receiving rent as his landlord; that he had been in occupation for 216 months; that the rent claimed was 40,000 only and the previous years were contested; and that he did not pay the 250,000 as it was not served on him and no distress was levied in respect of the same.
24. The Respondent gave further evidence in the course of the same hearing, stating that the Appellant was his tenant as per the tenancy agreement dated 26th November 2008; that there were arrears owing by the time of filing of Kshs 40,000/= which remained unpaid to date and that there were no further accruals; that the other unit remained locked; and that the Appellant pays Kshs 10,000/= per month. Under cross-examination by the Appellant’s counsel, however, he made the following admissions, which lie at the very heart of this appeal:
"The claim of 40,000 is from September 2015 to January 2016.
The tenant has since paid rent up to date. In March 2016, 40,000 was paid being rent plus arrears of 30,000. The tenancy is implied month to month. The tenant has paid rent to date."
25. In the same cross-examination the Respondent further conceded that the Rent Inspector’s report did not confirm who locked the premises; that the previous tenant left in 2016 and he came to know two months later; that the issue in respect of the unoccupied unit was not pleaded; that the documents produced by the Appellant were invoices and not receipts and that he "would have a problem with assessment"; that the entire estate is not fenced; and that he had no objection to inspection by a tribunal officer.
26. The Appellant produced in support of his case bank deposit slips occupying pages 195 to 375 of the record of appeal, being deposits made by him to the accounts of the Respondent and, in the earliest period, of the Respondent’s son Rowlands Nadida, spanning the period December 2006 to May 2024.
The Judgment of the Tribunal
27. In its judgment delivered on 10th December 2024 the Tribunal framed three issues for determination, namely: whether the tenant was in rent arrears and how much; whether the tenant undertook repairs and was entitled to offset the same from the rent; and whether the tenant should deliver vacant possession to the landlord.
28. On the first issue the Tribunal correctly directed itself that the landlord bore the legal burden of proving that the tenant was in actual rent arrears, citing Sections 107(1) and 109 of the Evidence Act . It then disposed of the issue in a single sentence: "Other than the alleged rent arrears of 512,185,000 (the full particulars which were not provided). The plaintiff/Tenant admitted having arrears of 20000 and not 40,000 as stated by the Plaintiff." Beyond recording that admission the Tribunal entered judgment for no sum at all, made no finding upon the balance of the pleaded claim, and did not address the Respondent’s admissions in cross-examination.
29. On the second issue the Tribunal held that the purported agreement and letters relied upon by the tenant "were subject of criminal proceedings which yielded no fruit on the genuineness or otherwise and hence unreliable." No finding whatsoever was made upon the quantum of the repairs or upon the Counterclaim.
30. On the third issue the Tribunal invoked Article 40 of the Constitution and, relying upon the decision in De Fransesco v Barnum (1890) 45 Ch.D 430 as cited in Communication Workers Union of Kenya v Telkom (K) Ltd & 2 Others (2006) eKLR , held as follows:
"Basing on the above case, this Tribunal shall not sustain the tenancy as that shall aid the conversion of a contract of personal service into a contract of slavery."
31. The Tribunal thereafter cited Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR upon the position of a tenant holding over demised premises, and made the following final orders:
"i. The Plaintiff/Tenant is to deliver vacant possession within 60 days subject to payment of rent up to then.
ii. The alleged cost and repairs (if any) is to be offset from the alleged rent arrears owed.
iii. Each party is to bear his own costs of the suit."
The appeal
32. Aggrieved by the said judgment the Appellant preferred the instant appeal vide a Memorandum of Appeal dated 7th January 2025 raising eight grounds which may be summarised as follows: that the Chairperson erred in law by allowing himself to be influenced by the Respondent’s personal feelings towards the Appellant rather than by the contractual obligations of the parties, the Respondent having admitted that the Appellant had been paying rent consistently and was up to date at the time of the hearing, and by holding that sustaining the tenancy would convert a contract of personal service into a contract of slavery; that he misdirected himself in dismissing the Appellant’s documentary evidence as unreliable on the basis that it was the subject of criminal proceedings which yielded no fruit, without any evidence in support of that conclusion; that he rendered an ambiguous decision by ordering that the alleged cost of repairs be offset from the alleged rent arrears without determining how much was owed on either account; that he failed to consider and grant the Appellant’s Counterclaim for the refund of the repair costs despite the evidence on record; that he failed to apply the principles governing the grant of vacant possession under the Rent Restriction Act, Cap 296 ; that he disregarded the evidence, pleadings and submissions on record and analysed the matter upon facts that were largely his own creation; that on the whole he failed to apply his mind properly to the facts before him; and that he was outrightly biased against the Appellant.
33. The Appellant accordingly prayed that the appeal be allowed, the judgment of the Tribunal be set aside, judgment be entered in his favour in terms of his Counterclaim, and that the costs of the appeal be borne by the Respondent.
34. Before the appeal could be heard on its merits the Respondent took out a Notice of Motion dated 2nd March 2026 together with a Notice of Preliminary Objection of even date. Vide the ruling delivered on 22 nd April 2026, the Court accordingly dismissed both the Preliminary Objection and the Notice of Motion, directed the Appellant to file and serve his record of appeal within thirty days in default whereof the appeal would stand dismissed, and ordered that the costs of the application and of the objection be in the cause. The Appellant complied, the record of appeal together with the supplementary record being dated 21st May 2026 and duly filed.
35. It follows that the questions whether the appeal has been overtaken by events and whether the substratum of the dispute survives were not disposed of by the ruling of 22nd April 2026 but were deliberately reserved to this judgment. I return to them in the analysis which follows.
The Appellant’s submissions
36. The Appellant, acting in person, filed written submissions dated 10th June 2026. He began by tracing the background of the dispute. He submitted that the Respondent’s claim as pleaded was a modest one, being four months’ arrears of Kshs 40,000/= together with an electricity bill of Kshs 10,063.70, and contended that he was never served with the Plaint dated 27th January 2016. He further submitted that the tenancy agreement annexed to the Respondent’s Notice of Motion dated 18th July 2017 bore anomalies on its face, the same having been indicated as made on 26th November 2008 but signed on 30th December 2014, some six years later and after the expiry date of 7th December 2014 indicated in clause 1 thereof. He also contended that the ex parte orders granted on 19th July 2017 lapsed by dint of the Respondent’s failure to prosecute the application inter partes as contemplated by Order 40 Rules 4, 5 and 6 of the Civil Procedure Rules .
37. The Appellant then narrated the history of the criminal proceedings, highlighting the findings of the court at Kibera in its judgment of 16th February 2023, namely that he had been paying rent of Kshs 5,000/= since December 2006 before the same was increased to Kshs 10,000/=; that the only reason he included the lease agreement in the Tribunal case was to show the history of the parties’ relationship; and that there was not, and could not have been, an intention to deceive or defraud since all the terms of the lease were as agreed by the parties. He emphasised that he was acquitted and that neither the Respondent nor the prosecution appealed. He noted that the Respondent was likewise acquitted in Criminal Case No. E1127 of 2020 in respect of the tenancy agreement upon which the Respondent had relied. He thereafter identified seven issues for determination which substantially mirror his grounds of appeal.
38. On the first issue, being the ambiguity of the Tribunal’s decision, the Appellant submitted that the Tribunal ordered an offset of the alleged cost of repairs against the alleged rent arrears without determining how much, if any, was owed in repair costs, how much, if any, was owed in rent arrears, and what net balance was payable to either party. He submitted that a valid judgment or decree must be clear, precise and capable of execution without requiring the parties to speculate or to undertake further calculations, and relied upon Ole Nganai v Arap Bor (1983) KLR 233 where the Court of Appeal held that a judgment or order which is nebulous, indefinite and uncertain is incapable of supporting a sensible decree and renders subsequent proceedings a nullity, the Court stating:
"I am of the opinion that both the proceedings and the result reached by the judge were a nullity, his order being meaningless. The preliminary issue decided by the judge does not amount to a settlement at all."
39. He further submitted that the Respondent himself admitted at trial that the Appellant was not in rent arrears since the filing of the suit in January 2016; that he produced bank deposit slips covering eighteen years of tenancy to which no contrary evidence was adduced; and that the Tribunal’s failure to make a specific finding upon that admission was a fatal error which of itself warrants the setting aside of the judgment.
40. On the second issue, being the introduction of new evidence through submissions, the Appellant submitted that the Respondent’s submissions before the Tribunal introduced entirely new prayers and factual allegations not pleaded in the Plaint, namely the claim for rent arrears of Kshs 512,185,000/=, special damages for restitution, general damages for pain and suffering, and rent of Kshs 25,000/= per month for the second unit. He submitted that no evidence was led at the hearing to prove any of the said items and that what has not been established at an inter partes hearing cannot later be raised as fact or evidence in submissions. He relied upon Erastus Wade Opande v Kenya Revenue Authority & Another, Kisumu HCCA No. 46 of 2007 and Nancy Wambui Gatheru v Peter Wanjere Ngugi, Nairobi HCCC No. 36 of 1993 , both as quoted by this Court in the earlier appeal between the same parties, and on Ng’ang’a & Another v Owiti & Another [2008] 1 KLR (EP) 749 . He placed particular reliance on the dictum of Odunga, J (as he then was) in Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR where the learned Judge stated:
"Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions."
41. The Appellant further cited Ole Nganai v Arap Bor (supra) for the additional proposition that it is wrong for a court to grant to a party an order which had not been asked for by that party either in the pleadings or during the trial.
42. On the third and fourth issues, concerning the Counterclaim and the treatment of his documentary evidence, the Appellant submitted that his Counterclaim was supported by uncontroverted documentary evidence comprising the letters of 5th January 2008, 7th January 2008, 10th April 2015 and 17th April 2015 together with the invoices dated 11th January 2008, 10th February 2008 and 21st May 2015, and that the Tribunal dismissed the said evidence upon a speculative ground. He submitted that a trial court must consider all the evidence on record and cannot dismiss it without a proper basis, and that dismissing evidence in that manner violates the right to a fair hearing under Article 50 of the Constitution . He relied upon John Peter Kamau Ruhangi v Kenya Reinsurance Corporation [2012] KECA 7 (KLR) where the Court of Appeal, addressing a trial court’s failure to consider a counterclaim, held:
"The Respondent claimed that sum in the counter-claim. If Justice Aganyanya had considered that claim, as he was under duty to do, in view of the evidence on record, he would have had no choice but to grant it."
43. He also relied upon Mbogo & Another v Shah [1968] EA 93 for the proposition that an appellate court will interfere where the trial court misdirected itself or acted upon matters which it should not have acted upon, or failed to take into consideration matters which it should have taken into consideration, and in so doing arrived at a wrong conclusion.
44. On the misdirection concerning the criminal proceedings, the Appellant submitted that the Tribunal’s statement that his documents were the subject of criminal proceedings which yielded no fruit on their genuineness was both factually incorrect and legally flawed. Factually, the criminal proceedings did yield fruit in that he was acquitted. Legally, a criminal acquittal does not render civil evidence unreliable, the standard of proof in criminal cases being higher than in civil cases. He further submitted that where a party fails to adduce evidence in rebuttal the court is entitled to accept the unrebutted evidence as truthful.
45. On the issues of failure to apply his mind to the facts and of bias, the Appellant submitted that his evidence of rent payments spanning eighteen years was uncontroverted; that the Respondent admitted at trial that he was not in arrears since 2016, yet the Tribunal made no finding on rent arrears; that the Chairperson misapplied the principle in De Fransesco v Barnum , which applies to contracts of personal service such as employment and not to tenancies; and that the totality of the record suggests bias against him. He relied upon R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119 on apparent bias, and invoked Article 50(1) of the Constitution .
46. On the grant of vacant possession, the Appellant submitted that the Respondent did not prove any of the grounds provided under Section 14(1) of the Rent Restriction Act , Cap 296, having proved neither rent arrears, nuisance, illegal use nor personal requirement, and that a protected tenant enjoys statutory security of tenure and cannot be evicted merely because the landlord wishes to recover possession. He relied upon Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd [1996] eKLR on the strictly circumscribed right of a landlord to recover possession of premises governed by rent restriction legislation.
47. On the Counterclaim, the Appellant submitted that the same was supported by the express written authorities of the Respondent, invoices from contractors and his uncontroverted testimony that the repairs were undertaken. He submitted that the Respondent filed no Defence to the Counterclaim and invoked Order 7 Rule 4 of the Civil Procedure Rules , contending that even without a formal application for judgment thereunder the trial court remained obligated to evaluate the Counterclaim on its me
[...truncated]