RULING
1. This is a ruling rather than a judgment in this appeal for reasons which are stated afterwards.
2. The appellants, who were the defendants before the trial court, filed this appeal through a memorandum dated 11th March 2024. The grounds of appeal are that the trial court erred in law and in fact:
i. in holding that the lack of a termination clause did not invalidate the lease agreement.
ii. in failing to appreciate that renovations were undertaken by the defendants (appellants herein) who incurred costs.
iii. by finding that the renovations undertaken fall under special damages and were not proven despite there being a handwritten agreement on the same by the parties.
iv. by failing to appreciate that the appellants terminated the lease agreement on 28th September 2015 and vacated the rented premises.
v. in failing to appreciate that upon termination of the Lease Agreement the appellants did not utilize the two shops in the period of 28th September 2015 and February 2016.
vi. in holding that the appellants were obligated to pay rent to the respondent regardless of the fact that they had vacated.
vii. in dismissing the defendants’ (appellants herein) counterclaim in the lower curt despite the weight of the evidence on record.
viii. by failing to provide an analysis of the finding or any authority which the court relied on in making its decision.
ix. in failing to consider the appellant’s submissions and authorities on record.
3. The appellants therefore pray for orders that:
i. The appeal be allowed in the following terms:-
a) The entire lower court judgment be set aside.
b) The lower court suit be dismissed.
c) The Counterclaim be allowed
d) Costs of the lower Court suit, the Counterclaim and the Appeal be awarded to the Appellants.
e) Interest on (c) and (d) above at court rates from the date of filing of the suit in the lower court.
ii. Any other further relief that the court may deem fit and just to grant.
4. Flowing from the grounds of appeal, it is immediately discernible that the dispute between the parties is that of a landlord and tenant. I went back to the pleadings before the lower court to discern what the nature of the dispute was.
5. The plaint amended on 18th November 2019 and the amended statement of defence and counterclaim and set-off dated 27th September 2019 show that the parties herein were in a landlord/tenant relationship at the property known as Land Reference No 209/2881 in Nairobi where the respondent was the lessor/co-proprietor whereas the 1st appellant was the lessee. The term of the lease was Five years and Three months commencing 1st. November 2012 at a monthly rent of KShs. 112,000/-, KShs. 120,400/-, KShs. 132,440/-, KShs. 145,684/-, KShs. 160,252/- exclusive of VAT in the first, second, third, fourth and fifth year respectively. The 2nd and 3rd appellants are the directors of the 1st appellant and were sued as its guarantors. The suit before the trial court was for recovery of rent arrears from the appellants by the respondent (plaintiff before the trial court) of KShs. 1,597,452.56/= together with interest at commercial rates.
6. At some point before the term of the lease expired the appellants, on 28th September 2015, issued a notice to the respondent for termination of the lease. According to the appellants the notice was in accordance with the lease agreement. According to the respondent, the appellants gave possession of the premises in February 2015 at which time 1st appellant had accumulated rental arrears of KShs. 2,119,234.56/=. Some adjustments were later done by the parties that brought the amount claimed down to KShs 1,597,452.56/=. According to the respondent, the defendants (appellants) paid some KShs 521,782/=) pursuant to the trial court's directions of 20th May 2019.
7. In their amended statement of defence and defence to counterclaim and set-off, the defendants (appellants herein) pleaded that following meetings held between them and the respondent on 6th Februагу 2016 it was agreed that the appellants owed the respondent a total of KShs. 1,207,782.00/= only.
8. That the meeting also agreed that the respondent was holding the appellants’ deposit of KShs. 336,000.00/= and the cost of putting two metallic doors, mezzanine, a toilet and two metallic stair cases amounting to KShs. 350,000.00/= making a total of KShs 686,000/=. Further that these sums were to be deducted from the sum owed of KShs. 1,207,782.00/= as at the end of April, 2016. That the meeting also agreed that the said deposit and costs of the improvements totaling KShs. 686,000.00/= was to be deducted from the total amount owing of 1,207,782.00/= since the appellants left the respondent’s premises in February, 2016.
9. From the foregoing the appellants conceded that they owed the respondent a sum of KShs. 521,782.00/=. They however maintained that they had already paid this sum to the respondent as directed by the Court on 20th May 2019 and so there was nothing more for the respondent to claim from them.
10. In spite of that averment, the appellants went ahead to plead in the counterclaim and set-off that:
“The Defendants therefore contend that the Plaintiff owes the Defendants KShs. 686,000/= as stated ... above and the Defendants Counterclaim the same from the Defendants (sic) and the same should be set off from the total amount owed.”
11. The respondent testified before the trial court and produced the documents enumerated in her list of documents as exhibits. Learned counsels have submitted that the appellants testified through one witness and also produced as exhibits some documents as per their filed list.
12. Upon evaluating the evidence, the trial court concluded that the respondent had proved that the 1st appellant owed the respondent the sum claimed in the amended plaint of KShs. 1,597,452.56/- being rent arrears less KShs. 336,000/- being the rent deposit paid by the 1st appellant. The trial court therefore entered judgment for the respondent in the sum of KShs. 1,231,452.56/- against the 1st appellant being rent arrears together with costs of the suit to be borne by the 1st appellant and dismissed the counterclaim and set-off raised by the appellants against the respondent.
13. The basis of that conclusion was the trial court’s finding that even though the appellants stated that they had renovated the suit premises with permission from the respondent, they failed to provide any supporting documentation to prove that the respondent had allowed them to undertake the renovations. Moreover, that the appellants’ contention that they had incurred costs amounting to KShs. 350,000/-for renovations being putting metallic door, mezzanine, a toilet and two metallic staircases was not proved because they had failed to produce receipts as proof that the renovations costed KShs. 350,000/- since the same were special damages and the appellants could not claim the same. For that finding the learned trial magistrate referred to the case of Douglas Odhiambo Apel & another v Telkom Kenya Limited & 2 others [2006] KEHC 3087 (KLR).
14. I have considered this appeal to that extent. Before I proceed I wish the issue of the jurisdiction of this court to handle this appeal to be determined first. In view of the fact that the claim before the lower court was for rent arrears and in view of the provisions of Article 162(2)(b) of the Constitution as read with section 13 of the Environment and Land Court Act, (Cap. 8D) Laws of Kenya, I wish to call upon the parties to file submissions on the issue of whether this court has jurisdiction to determine the appeal herein.
15. I am guided by the Court of Appeal decision in Kenya Ports Authority v Modern Holdings [E.A] Limited [2017] KECA 293 (KLR) where it held that:
“We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised:‘… at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the Court itself- provided only that where the Court raises it suo motu, parties are to be accorded an opportunity to be heard.’
16. Both parties to file submissions within 14 days from today.
17. At the same time, I have noted that although learned counsels submitted that the defendants (appellants herein) also testified before the trial court through one of them, while going through the Record of Appeal I have not seen those proceedings. It appears that some part of the trial court proceedings was skipped during the typing because it shows that the plaintiff (respondent herein) testified and closed her case on 25th April 2023. Defence hearing was set for 28th June 2023 but did not take off. The case came up on other dates and on 15th August 2023 it was again fixed for defence hearing on 16th October 2023.
18. The proceedings then move to 12/11/2024, over a year later, before the same magistrate Hon B.M Cheloti PM with counsels appearing being Mr. Musundi for the defendants and Mr. Chincke holding brief for Mr. Ojonga for the plaintiff/respondent. Mr Musundi informed the court that they were praying for 14 days to deposit the decretal sum. It is apparent that these were now post-judgment proceedings meaning that the handwritten proceedings which carry the defendants’ (appellants’) testimony are missing from the typed proceedings in the record of appeal.
19. I am therefore unable to complete writing the judgment and thus this ruling.
20. Therefore, this court directs that the appellants to file a supplementary record of appeal to include the trial court proceedings between 15th August 2023 and 12th November 2024 in which the appellants’ testimony is said to be but is missing from the record of appeal. Alternatively, the Deputy to have the trial court file made available to this court in order to expedite the determination of the matter.
21. Mention on 15th April 2026 to confirm compliance with the directions herein and for further directions.
Delivered, dated and signed on the Virtual Platform, MicrosoftTeams this 3rd day of February 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellants.
Ojang’a for the Respondent.
Ummu: Court Assistant.
1. This is a ruling rather than a judgment in this appeal for reasons which are stated afterwards.
2. The appellants, who were the defendants before the trial court, filed this appeal through a memorandum dated 11th March 2024. The grounds of appeal are that the trial court erred in law and in fact:
i. in holding that the lack of a termination clause did not invalidate the lease agreement.
ii. in failing to appreciate that renovations were undertaken by the defendants (appellants herein) who incurred costs.
iii. by finding that the renovations undertaken fall under special damages and were not proven despite there being a handwritten agreement on the same by the parties.
iv. by failing to appreciate that the appellants terminated the lease agreement on 28th September 2015 and vacated the rented premises.
v. in failing to appreciate that upon termination of the Lease Agreement the appellants did not utilize the two shops in the period of 28th September 2015 and February 2016.
vi. in holding that the appellants were obligated to pay rent to the respondent regardless of the fact that they had vacated.
vii. in dismissing the defendants’ (appellants herein) counterclaim in the lower curt despite the weight of the evidence on record.
viii. by failing to provide an analysis of the finding or any authority which the court relied on in making its decision.
ix. in failing to consider the appellant’s submissions and authorities on record.
3. The appellants therefore pray for orders that:
i. The appeal be allowed in the following terms:-
a) The entire lower court judgment be set aside.
b) The lower court suit be dismissed.
c) The Counterclaim be allowed
d) Costs of the lower Court suit, the Counterclaim and the Appeal be awarded to the Appellants.
e) Interest on (c) and (d) above at court rates from the date of filing of the suit in the lower court.
ii. Any other further relief that the court may deem fit and just to grant.
4. Flowing from the grounds of appeal, it is immediately discernible that the dispute between the parties is that of a landlord and tenant. I went back to the pleadings before the lower court to discern what the nature of the dispute was.
5. The plaint amended on 18th November 2019 and the amended statement of defence and counterclaim and set-off dated 27th September 2019 show that the parties herein were in a landlord/tenant relationship at the property known as Land Reference No 209/2881 in Nairobi where the respondent was the lessor/co-proprietor whereas the 1st appellant was the lessee. The term of the lease was Five years and Three months commencing 1st. November 2012 at a monthly rent of KShs. 112,000/-, KShs. 120,400/-, KShs. 132,440/-, KShs. 145,684/-, KShs. 160,252/- exclusive of VAT in the first, second, third, fourth and fifth year respectively. The 2nd and 3rd appellants are the directors of the 1st appellant and were sued as its guarantors. The suit before the trial court was for recovery of rent arrears from the appellants by the respondent (plaintiff before the trial court) of KShs. 1,597,452.56/= together with interest at commercial rates.
6. At some point before the term of the lease expired the appellants, on 28th September 2015, issued a notice to the respondent for termination of the lease. According to the appellants the notice was in accordance with the lease agreement. According to the respondent, the appellants gave possession of the premises in February 2015 at which time 1st appellant had accumulated rental arrears of KShs. 2,119,234.56/=. Some adjustments were later done by the parties that brought the amount claimed down to KShs 1,597,452.56/=. According to the respondent, the defendants (appellants) paid some KShs 521,782/=) pursuant to the trial court's directions of 20th May 2019.
7. In their amended statement of defence and defence to counterclaim and set-off, the defendants (appellants herein) pleaded that following meetings held between them and the respondent on 6th Februагу 2016 it was agreed that the appellants owed the respondent a total of KShs. 1,207,782.00/= only.
8. That the meeting also agreed that the respondent was holding the appellants’ deposit of KShs. 336,000.00/= and the cost of putting two metallic doors, mezzanine, a toilet and two metallic stair cases amounting to KShs. 350,000.00/= making a total of KShs 686,000/=. Further that these sums were to be deducted from the sum owed of KShs. 1,207,782.00/= as at the end of April, 2016. That the meeting also agreed that the said deposit and costs of the improvements totaling KShs. 686,000.00/= was to be deducted from the total amount owing of 1,207,782.00/= since the appellants left the respondent’s premises in February, 2016.
9. From the foregoing the appellants conceded that they owed the respondent a sum of KShs. 521,782.00/=. They however maintained that they had already paid this sum to the respondent as directed by the Court on 20th May 2019 and so there was nothing more for the respondent to claim from them.
10. In spite of that averment, the appellants went ahead to plead in the counterclaim and set-off that:
“The Defendants therefore contend that the Plaintiff owes the Defendants KShs. 686,000/= as stated ... above and the Defendants Counterclaim the same from the Defendants (sic) and the same should be set off from the total amount owed.”
11. The respondent testified before the trial court and produced the documents enumerated in her list of documents as exhibits. Learned counsels have submitted that the appellants testified through one witness and also produced as exhibits some documents as per their filed list.
12. Upon evaluating the evidence, the trial court concluded that the respondent had proved that the 1st appellant owed the respondent the sum claimed in the amended plaint of KShs. 1,597,452.56/- being rent arrears less KShs. 336,000/- being the rent deposit paid by the 1st appellant. The trial court therefore entered judgment for the respondent in the sum of KShs. 1,231,452.56/- against the 1st appellant being rent arrears together with costs of the suit to be borne by the 1st appellant and dismissed the counterclaim and set-off raised by the appellants against the respondent.
13. The basis of that conclusion was the trial court’s finding that even though the appellants stated that they had renovated the suit premises with permission from the respondent, they failed to provide any supporting documentation to prove that the respondent had allowed them to undertake the renovations. Moreover, that the appellants’ contention that they had incurred costs amounting to KShs. 350,000/-for renovations being putting metallic door, mezzanine, a toilet and two metallic staircases was not proved because they had failed to produce receipts as proof that the renovations costed KShs. 350,000/- since the same were special damages and the appellants could not claim the same. For that finding the learned trial magistrate referred to the case of Douglas Odhiambo Apel & another v Telkom Kenya Limited & 2 others [2006] KEHC 3087 (KLR).
14. I have considered this appeal to that extent. Before I proceed I wish the issue of the jurisdiction of this court to handle this appeal to be determined first. In view of the fact that the claim before the lower court was for rent arrears and in view of the provisions of Article 162(2)(b) of the Constitution as read with section 13 of the Environment and Land Court Act, (Cap. 8D) Laws of Kenya, I wish to call upon the parties to file submissions on the issue of whether this court has jurisdiction to determine the appeal herein.
15. I am guided by the Court of Appeal decision in Kenya Ports Authority v Modern Holdings [E.A] Limited [2017] KECA 293 (KLR) where it held that:
“We have stressed that jurisdiction is such a fundamental matter that it can be raised at any stage of the proceedings and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised:‘… at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the Court itself- provided only that where the Court raises it suo motu, parties are to be accorded an opportunity to be heard.’
16. Both parties to file submissions within 14 days from today.
17. At the same time, I have noted that although learned counsels submitted that the defendants (appellants herein) also testified before the trial court through one of them, while going through the Record of Appeal I have not seen those proceedings. It appears that some part of the trial court proceedings was skipped during the typing because it shows that the plaintiff (respondent herein) testified and closed her case on 25th April 2023. Defence hearing was set for 28th June 2023 but did not take off. The case came up on other dates and on 15th August 2023 it was again fixed for defence hearing on 16th October 2023.
18. The proceedings then move to 12/11/2024, over a year later, before the same magistrate Hon B.M Cheloti PM with counsels appearing being Mr. Musundi for the defendants and Mr. Chincke holding brief for Mr. Ojonga for the plaintiff/respondent. Mr Musundi informed the court that they were praying for 14 days to deposit the decretal sum. It is apparent that these were now post-judgment proceedings meaning that the handwritten proceedings which carry the defendants’ (appellants’) testimony are missing from the typed proceedings in the record of appeal.
19. I am therefore unable to complete writing the judgment and thus this ruling.
20. Therefore, this court directs that the appellants to file a supplementary record of appeal to include the trial court proceedings between 15th August 2023 and 12th November 2024 in which the appellants’ testimony is said to be but is missing from the record of appeal. Alternatively, the Deputy to have the trial court file made available to this court in order to expedite the determination of the matter.
21. Mention on 15th April 2026 to confirm compliance with the directions herein and for further directions.
Delivered, dated and signed on the Virtual Platform, MicrosoftTeams this 3rd day of February 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellants.
Ojang’a for the Respondent.
Ummu: Court Assistant.