Muchira v Little Vineyards Auctioneers & another (Environment and Land Appeal E270 of 2025) [2026] KEELC 2989 (KLR) (20 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLA NO. E270 OF 2025** **ALEX KAARA MUCHIRA**.......................................................**APPELLANT** VERSUS **LITTLE VINEYARDS AUCTIONEERS**.............................**1ST RESPONDENT** **SYLVESTER GITAU**....................................................**2ND RESPONDENT** ***(Being an appeal from the Ruling and Decree of the Business Premises Tribunal delivered on the 19th November 2025 by Hon. Patrick Kitur in BPRT Case No. E784 of 2023)*** **J U D G M E N T** **Introduction** 1. The Appellant, **Alex Kaara Muchira,** being aggrieved by the Ruling and Decree of the Business Premises Rent Tribunal (hereafter, "the Tribunal") delivered on **19th November 2025 by Hon. P. Kitur,** Member, in BPRT/E784/2023, lodged this appeal on thirteen (13) grounds. The Ruling of the Tribunal dismissed the Appellant's Notice of Motion dated 15th August 2023, which had sought injunctive and preservatory orders restraining the Respondents from levying distress for rent, ordered the Appellant to clear rental arrears of Kshs. 295,000/= as at October 2025, awarded the Respondents costs of Kshs. 20,000/=, and declared the complaint settled. 2. The 1st Respondent is the Landlord, **Sylvester Gitau.** The 2nd Respondent is **Little Vineyards Auctioneers**, the auctioneer engaged by the Landlord to levy distress. The Appellant operates a medical clinic at the subject premises in Kayole, Nairobi. 3. Upon admission of the appeal, the Court directed that the same be canvassed by way of written submissions. Pursuant to that direction, the Appellant filed written submissions dated **30th April 2026**, and the 1st and 2nd Respondents filed written submissions dated **4th May 2026**. The appeal was resisted by the Respondents, who urged that the Tribunal correctly applied the law and that the appeal should be dismissed with costs. **Background facts** 4. The parties entered into a tenancy agreement for commercial business premises. Disputes over rent payments arose, culminating in the Landlord instructing Little Vineyards Auctioneers to levy distress for rent. In response, the Appellant filed a Notice of Motion dated 15th August 2023 before the Business Premises Rent Tribunal at Nairobi seeking injunctive orders to restrain the Respondents from levying distress. 5. Before the Tribunal, the Landlord claimed that the Appellant owed arrears of Kshs. 295,000/= as at October 2025 (having initially claimed Kshs. 400,000/= before revising the figure). The Landlord produced an account statement, which the Tribunal found to be internally consistent and chronological, reflecting arrears of Kshs. 265,000 as at August 2025, and ultimately Kshs. 295,000 as at October 2025. 6. The Appellant, on the other hand, maintained that he had made aggregate payments totalling Kshs. 453,000/= to the Respondents through M-Pesa transfers, bank cheques, and cash, specifically citing the following payments: (a) August 2023 – M-Pesa payment of Kshs. 30,000 (b) 16th May 2024 – I&M Bank Cheque No. 4001056250000046 – Kshs. 70,000 (c) 29th May 2024 – I&M Bank Transfer No. 489958178198 – Kshs. 193,000 (d) 29th May 2024 – Cash payment – Kshs. 10,000 (e) 24th June 2024 – I&M Bank Cheque No. 4001056250000055 – Kshs. 30,000 (f) 20th June 2024 – M-Pesa Transaction SFK03gc71G – Kshs. 15,000 (g) 22nd May 2025 – I&M Bank Transfer No. 159796032247 – Kshs. 30,000 (h) 3rd June 2025 – I&M Bank Transfer No. 772493186660 – Kshs. 60,000 (i) 19th July 2025 – I&M Bank Transfer No. 2198vodw3184 – Kshs. 15,000 7. The Tribunal, after evaluating the evidence, found that the Appellant's rental statement of account was *"riddled with discrepancies and inconsistencies"*, that intermittent payments had been made but did not extinguish the arrears in full, and that the Appellant had not discharged the evidential burden of proving full payment. The Tribunal dismissed the Appellant's application, ordered payment of arrears of Kshs. 295,000/=, and awarded costs of Kshs. 20,000/=. **Grounds of appeal** 8. The Appellant preferred this appeal on thirteen (13) grounds, which this Court has consolidated into the following substantive issues: (a) Whether the Tribunal erred in law and in fact in its evaluation and application of the burden and standard of proof under Sections 107 and 108 of the Evidence Act, Cap. 80; (b) Whether the Tribunal failed to evaluate, consider, or properly appreciate the Appellant's documentary evidence of rental payments totalling Kshs. 453,000/=; (c) Whether the Tribunal misdirected itself in law and in fact by relying on extraneous considerations and speculation, thereby reaching findings unsupported by the evidence; (d) Whether the Tribunal erred in holding that the levy of distress was lawful in the circumstances; and (e) Whether the Tribunal correctly exercised its quasi-judicial functions in compliance with Article 159 of the Constitution of Kenya, 2010. **The Appellant’s submissions** 9. The Appellant, through **M/s GMR Advocates LLP,** filed written submissions dated **30th April 2026.** The Appellant contended that this being the first appellate court, it is under a duty to re-evaluate the evidence and arrive at its own independent judgment, citing **Bashir Ahamed Butt v Uais Ahamed Khan (1982-88) 1 KLR as referenced in Kenya Oil Company Limited & Another v Kenya Pipeline Company [2014] eKLR.** 10. On the burden of proof, the Appellant submitted that under **Sections 107 and 108 of the Evidence Act, Cap. 80**, he had discharged both his legal and evidentiary burden by adducing verifiable, transparent, and credible evidence of payments totalling Kshs. 453,000/= against the Respondents’ unsubstantiated rental arrears claim of Kshs. 295,000/=. The Appellant enumerated nine specific payments made by M-Pesa and I&M Bank transfers and cheques between August 2023 and July 2025. He relied on the Supreme Court decision in **Raila Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [Presidential Petition No. 1 of 2017] [2017] KESC and Samuel Kipkorir Ngeno & Another v Local Authorities Pension Trust (Registered Trustees) & Another [2013] eKLR** on the principles governing burden of proof. The Appellant further submitted that the Respondents only acknowledged Kshs. 140,000/= out of the total payments but failed to indicate the mode, date, or time of such payments and did not issue any official receipts, thereby creating a fraudulent appearance of default. 11. The Appellant further submitted that M-Pesa transaction messages and bank transfer records are legally admissible electronic evidence under **Sections 78A and 106B of the Evidence Act and Sections 83G and 83H of the Kenya Information and Communications Act (KICA), 1998.** The Appellant contended that the Tribunal erred in dismissing these records as insufficient simply because they lacked written acknowledgement from the Landlord, and that once the Appellant produced such traceable payment evidence, the evidential burden shifted to the Respondents, who failed to call witnesses to rebut the transactions. The Appellant relied on **Drappery Empire v The Attorney General Nairobi H.CCC No. 2666 of 1996** for the proposition that failure by a defendant to adduce evidence leads the court to hold that the plaintiff’s case is proved on a balance of probabilities. 12. On the conduct of the Tribunal, the Appellant submitted that the Honourable Member of the Tribunal derelicted his duty to act judicially under Article 159 of the Constitution, 2010 by dismissing the Appellant’s reference as lacking merit despite the triable issues and evidence placed before him. The Appellant argued that the Tribunal’s finding that the rental statement was “riddled with discrepancies and inconsistencies” was based on no evidence at all or on a misapprehension of the facts, since the Tribunal failed to interrogate the Appellant’s documentary evidence on a transaction-by-transaction basis and never directed itself to the legal admissibility of electronic payment records in Kenya. The Appellant further contended that the Tribunal substituted the Appellant’s verifiable evidence with speculation and conjecture, formulated issues not arising from the pleadings, and drew illogical and unjustified conclusions. The Appellant relied on **Kenya Agricultural and Livestock Research Organization v Okoko & Another (Civil Appeal 36A of 2021) [2022] KEHC 3302 (KLR) and Mati & Another v Gicheru (Civil Appeal E002 of 2024) [2025] KEHC 2062 (KLR***)* in support of the proposition that appellate interference is warranted to prevent injustice arising from erroneous decisions. The Appellant prayed that the appeal be allowed with costs, the Tribunal’s ruling and decree be set aside, and the Appellant’s claim be allowed with costs. **The Respondents’ Submissions** 13. The 1st and 2nd Respondents, through **M/s Gaita & Company Advocates,** filed written submissions dated **4th May 2026** opposing the appeal. The Respondents submitted that the Tribunal’s ruling was sound and should not be disturbed, and that the appeal lacked any merit and ought to be dismissed with costs. The Respondents relied principally on the Replying Affidavit sworn on 25th August 2023 and characterised the Appellant as a chronic defaulter who had not paid rent since April 2023 and was therefore undeserving of equitable relief. 14. On the threshold for injunctive relief, the Respondents submitted that the applicable principles are settled in **Giella v Cassman Brown [1973] EA 358, as refined in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,** and that the Appellant failed to satisfy any of the three limbs: (i) he had no prima facie case given his admitted rent arrears of Kshs. 75,000/= as at August 2023; (ii) he faced no irreparable harm as any improper distress was compensable by damages per **Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227;** and (iii) the balance of convenience favoured the Respondents, as the Appellant had enjoyed continued occupation without payment. The Respondents relied on **Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR** for the proposition that a party seeking equitable relief must come to court with clean hands, and on **Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR** for the principle that the mere existence of a dispute does not warrant injunctive relief. 15. On the right to levy distress, the Respondents submitted that under Section 3 of the Distress for Rent Act (Cap. 293), a landlord is legally entitled to levy distress where rent is due and unpaid. They cited **JK Chatrath & Another v Shah Cedar (1967) EA 93** for the proposition that distress does not become illegal merely because it is levied for more rent than is due, and argued that since the Appellant was in admitted rent arrears, the levy of distress was lawful, regular, and justified. The Respondents further urged that the Appellant’s written communication boasting that he had “the time and money to flex his might in court” demonstrated his bad faith and his ability to meet financial obligations. They also contended that the Appellant’s conduct amounted to an abuse of court process. They relied on **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR** for the principle that dishonesty and bad faith disentitle a party from equitable relief. The Respondents urged the Court to dismiss the appeal with costs, uphold the Tribunal’s ruling in its entirety, and confirm the Landlord’s right to levy distress and to issue any notice he deems fit. **Issues for determination** 16. Having considered the record of appeal, the memorandum of appeal, the parties' submissions, and the law, this Court frames the following issues for determination: **(i) Whether the Tribunal properly evaluated the evidence of rental payments placed before it.** **(ii) Whether the Tribunal's finding that rent arrears of Kshs. 295,000/= existed as at October 2025 was supported by the evidence.** **(iii) What orders are appropriate**? **Analysis and determination** 17. This Court is the first appellate court from the Business Premises Rent Tribunal. The jurisdiction and duty of a first appellate court is well-settled in Kenyan jurisprudence. In the celebrated case of **Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123,** the Court of Appeal stated that a first appellate court is not merely reviewing whether the trial court made an error, but must re-evaluate and re-assess the evidence afresh and arrive at its own independent conclusions, always bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. 18. This principle has been consistently affirmed by the Court of Appeal of Kenya. In **Bashir Ahamed Butt v Uais Ahamed Khan (1982-88) 1 KLR,** as cited in **Kenya Oil Company Limited & Another v Kenya Pipeline Company [2014] eKLR,** the Court reiterated that the first appellate court is under a duty to subject the entire evidence to fresh and exhaustive scrutiny. Similarly, in **Mwanasokoni v Kenya Bus Service Ltd (1982-88) 1 KLR 278,** the Court of Appeal held that a first appellate court will ordinarily not interfere with findings of fact by the trial court unless they are based on no evidence at all, or on a misapprehension of it, or the court demonstrably acted on wrong principles in reaching the findings. See also **Kiruga v Kiruga & Another [1988] KLR 348.** 19. This Court will accordingly subject the evidence before the Tribunal to fresh and exhaustive scrutiny, keeping in mind that it did not have the benefit of hearing witnesses viva voce, given that the proceedings were based on affidavit evidence and written submissions. **Issue (i): Evaluation of Evidence of Payment and the Burden of Proof** 20. The central and determinative issue before the Tribunal and now before this Court is whether the Appellant discharged the burden of proof to demonstrate payment of the alleged rental arrears. The Tribunal applied **Sections 107 and 108 of the Evidence Act, Cap. 80.** 21. **Section 107(1) of the Evidence Act** provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 108 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. These provisions are uncontroversial and were correctly identified by the Tribunal as the governing standard. 22. In the Supreme Court case of **Raila Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others; Aukot & Another (Interested Parties); Attorney General & Another (Amicus Curiae) [Presidential Petition No. 1 of 2017] [2017] KESC**, the Supreme Court underscored that the burden of proof means the obligation to adduce evidence of sufficient quality to persuade the court of the facts asserted. This legal burden does not shift, though the evidential burden may shift once sufficient evidence has been adduced by one party. 23. The Appellant's case rested on documentary records comprising M-Pesa transaction messages, bank transfer confirmations, and a cheque. The Tribunal, upon scrutinising the Appellant's rental statement, found it *"riddled with discrepancies and inconsistencies"*, with several months reflecting no recorded payments and other payments being partial and unsupported by bank transfer confirmations or written acknowledgements by the Landlord. 24. This Court has carefully considered the Appellant's documentary evidence as contained in the record of appeal. The question is whether the Tribunal's characterisation of that evidence as discrepant and inconsistent was supported or was a misapprehension of the evidence. 25. The Appellant's submissions before this Court raise legitimate and weighty concerns. First, the Appellant avers that M-Pesa transaction SMS messages and bank transfer records are legally admissible electronic records under **Section 78A and Section 106B of the Evidence Act, Cap. 80**. This Court agrees. Electronic records, including M-Pesa SMS messages and bank transfer statements, when properly authenticated, are admissible as evidence of the transactions they record. In **Samuel Kipkorir Ngeno & Another v Local Authorities Pension Trust (Registered Trustees) & Another [2013] eKLR,** the court recognized that a tenant's primary obligation is to pay rent, and that evidence of payment must be credible and verifiable. 26. Second, the Appellant's concern regarding the Respondents' acknowledgement of Kshs. 140,000 as a separate sum not accounted for within the Appellant's own schedule of Kshs. 453,000 raises a genuine arithmetical and evidentiary question that the Tribunal was obligated to resolve with particularity. If the Landlord acknowledged receipt of Kshs. 140,000 separately from the amounts the Appellant itemized, then the totality of payments received by the Landlord would arguably exceed the amounts reflected in either party's individual accounts. 27. Third, and critically, the Tribunal found that the Landlord's account statement was internally consistent and chronological, reflecting arrears of Kshs. 265,000 as at August 2025. Yet the Tribunal also acknowledged that the Landlord initially claimed Kshs. 400,000 in arrears before revising the figure to Kshs. 295,000 a variance of Kshs. 105,000 without any clear explanation of how and when this reduction was achieved. This Court observes that a creditor who claims a moving target of arrears without itemising how each figure was reached, and without correlating payments made against specific rental periods, cannot be said to have discharged the burden of establishing the specific quantum of debt. 28. Fourth, the Tribunal found that the Appellant did not produce rental receipts. The Appellant, however, raised a valid and uncontroverted point before the Tribunal: the Landlord never issued rental receipts. A tenant cannot be penalised for the absence of receipts when the obligation to issue such receipts rests with the Landlord under the terms of the tenancy and by basic commercial practice. In **Mati & Another v Gicheru (Civil Appeal E002 of 2024) [2025] KEHC 2062 (KLR),** the court held that an erroneous decision unsupported by the evidence presents grounds for appellate interference to prevent injustice. 29. Fifth, the Tribunal's finding that the Appellant's M-Pesa and bank records were insufficient without written acknowledgement by the Landlord sets an unduly onerous evidentiary standard. The purpose of digital payment infrastructure in Kenya including M-Pesa is precisely to create a verifiable, time-stamped, and immutable record of transactions. Requiring a landlord's counter-acknowledgement before such records can be treated as proof of payment undermines the very purpose and legal recognition of electronic payments in Kenya. 30. That said, this Court also notes that the Appellant's own statement of account, as presented to the Tribunal, was not without difficulty. The Tribunal was entitled to observe discrepancies in the Appellant's own documentary record. However, the correct judicial response to such discrepancies is not summarily to reject the entirety of the Appellant's evidence, but to subject each transaction to scrutiny, correlate it against the Landlord's account, and arrive at a reconciled position on the actual state of the rental account. 31. The Tribunal, in finding that arrears of Kshs. 295,000 existed as at October 2025, accepted the Landlord's account statement in its entirety without interrogating the discrepancy between the initial claim of Kshs. 400,000 and the revised figure of Kshs. 295,000, and without systematically correlating the Appellant's traced payments against the Landlord's account. This constitutes an error in the evaluation of evidence. In **Kenya Agricultural and Livestock Research Organization v Okoko & Another (Civil Appeal 36A of 2021) [2022] KEHC 3302 (KLR),** the court affirmed that appellate interference is warranted where the trial tribunal failed to evaluate evidence in its totality. **Issue (ii): The Tribunal's Findings on Rent Arrears and the Lawfulness of Distress** 32. **Section 3 of the Distress for Rent Act,** provides: ***"Subject to the provisions of this Act, every person having any rent or rent service in arrear and due upon any grant, lease, demise or contract whatsoever shall have the same remedy by distress for the recovery of such rent or rent service as is given by the common law of England in the like case."*** 33. In **JK Chatrath & Another v Shah Cedar (1967) EA 93,** the court held that the position in England adopted in Kenya by virtue of Section 3 of the Distress for Rent Act is that a landlord is entitled to exercise the right of distress if any rent is in arrears, and that distress does not become illegal merely because it is levied for more rent than is actually due. 34. However, the exercise of the right of distress, while lawful in principle where rent is genuinely in arrears, is conditioned upon the actual existence of proven arrears. A landlord cannot lawfully levy distress if no rent is in fact due, or if the amount claimed as arrears is not credibly established. The statutory right of distress is therefore not self-executing and presupposes a determination of the actual rent due. 35. This Court finds that the Tribunal correctly identified the legal framework governing distress. However, the Tribunal's finding that arrears of Kshs. 295,000/= existed as at October 2025 which underpinned both the dismissal of the Appellant's application and the authorisation of distress was arrived at without adequate reconciliation of the competing evidence on both sides. In particular: (a) The Tribunal did not undertake a transaction-by-transaction analysis of the Appellant's nine (9) itemised and partially documented payments totalling Kshs. 453,000/=; (b) The Tribunal did not satisfactorily explain the Landlord's own acknowledged payment of Kshs. 140,000 and how it correlated with either party's account; (c) The Tribunal did not account for the unexplained reduction in the Landlord's claimed arrears from Kshs. 400,000 to Kshs. 295,000; and (d) The Tribunal applied an unduly restrictive approach to M-Pesa and bank electronic records, demanding written landlord acknowledgement as a prerequisite for those records to qualify as proof of payment. 36. This Court is accordingly unable to sustain the Tribunal's finding that arrears of Kshs. 295,000/= existed as at October 2025 as an established fact supported by a full and proper evaluation of the evidence. Equally, this Court cannot, on the basis of the available record, substitute its own finding on the precise quantum of arrears, if any, given that the reconciliation of the accounts requires a forensic and granular exercise that ought to be conducted by the Tribunal with the full benefit of the parties' documentation. 37. The Respondents relied on the three-limbed test for injunctions as settled in **Giella v Cassman Brown [1973] EA 358, as refined in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR:** (i) a prima facie case with a probability of success; (ii) irreparable injury not compensable by damages; and (iii) balance of convenience. 38. In **Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR,** the Court of Appeal held that a party seeking equitable relief must come to court with clean hands. In **Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR**, the court emphasized that a mere dispute does not warrant injunctive relief. 39. This Court notes that if it were established, after proper reconciliation of accounts, that the Appellant made payments significantly reducing or extinguishing the claimed arrears, then the prima facie case threshold would be readily met. An Appellant who produces bank statements, cheque records, and M-Pesa receipts totalling Kshs. 453,000/= in claimed payments against a landlord's demand of Kshs. 295,000/= the difference between which was not adequately interrogated cannot be dismissed as having no prima facie case simply because the Tribunal preferred the Landlord's account statement. 40. Further, this Court notes that the Tribunal's reliance on the Appellant's statement that he had "the time and money to flex his might in court" as evidence of bad faith was an irrelevant consideration. A litigant's intemperate language in the course of a commercial dispute does not disentitle him of legal rights, and it is not the function of a tribunal to adjudicate on the demeanour of a party's communications rather than the merits of the dispute. As was observed in **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR,** dishonesty not mere arrogance disentitles a party from equitable relief. There is a material distinction between an intemperate litigant and a dishonest one. 41. **Article 159(2)(d) of the Constitution of Kenya,** 2010 directs courts and tribunals to administer justice without undue regard to procedural technicalities. This constitutional imperative, however, does not relieve a tribunal of its obligation to conduct a rigorous and impartial evaluation of the evidence. 42. This Court finds that the Tribunal's failure to undertake a systematic reconciliation of the rental accounts, its dismissal of the Appellant's electronic payment records without a transaction-by-transaction analysis, and its acceptance of the Landlord's revised arrears figure without requiring any itemised explanation for the revision from Kshs. 400,000 to Kshs. 295,000 collectively amount to a failure to exercise judicial function with the care and impartiality required. This renders the Tribunal's decision susceptible to appellate interference. **Costs** 44. The Appellant is entitled to the costs of this appeal. The costs of this appeal are accordingly assessed and certified at **Kshs. 40,000/=** all inclusive.The said costs are payable by the 1st and 2nd Respondents jointly and severally to the Appellant. 45. For the avoidance of doubt, these costs relate only to the costs of the proceedings before this Court on this appeal. The costs of the proceedings before the Business Premises Rent Tribunal in BPRT/E784/2023 shall abide the outcome of the remitted hearing. **Final orders** 55. Accordingly, this Court makes the following final orders: 1. **The appeal is hereby allowed.** 2. **The Ruling and Decree of the Business Premises Rent Tribunal in BPRT/E784/2023 dated 19th November 2025 is hereby set aside in its entirety.** 3. **The matter is remitted to the Business Premises Rent Tribunal for re-hearing and determination of the sole issue of the quantum of rental arrears, if any, outstanding as at October 2025, with directions that the Tribunal shall conduct a transaction-by-transaction reconciliation of the rental accounts of both parties.** 4. **Pending the determination of the remitted matter, the Respondents are hereby restrained from levying distress for rent against the Appellant's goods or interfering with the Appellant's occupation of the subject premises.** 5. **The costs of this appeal are awarded to the Appellant assessed at Kshs. 40,000/= all inclusive payable by the 1st and 2nd Respondents jointly and severally.** **Dated, Signed and Delivered Virtually this 20th day of May 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:-** **N/A for the Appellant.** **Mr. Gaita for the 1st and 2nd Respondents.** **Court Assistants: Mary Ngoira and David Ngoosa.**