[2022] KEHC 13876 (KLR)

A.Z. Shah t/a Fashion Spot v Jan Mohammed Investment Limited (Civil Suit 513 of 2012) [2022] KEHC 13876 (KLR) (Civ) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13876 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 513 of 2012

CW Meoli, J

October 13, 2022

Between

A.Z. Shah t/a Fashion Spot

Plaintiff

and

Jan Mohammed Investment Limited

Defendant

Judgment

1. AZ Shah t/a Fashion Spot, (hereafter the plaintiff) the erstwhile tenant of Jan Mohammed Investment Limited, his former landlord (hereafter the defendant) seeking the sum of Kshs 2,018,362. 10/- in respect of arrears of rent wrongly paid or rent overpaid; the sum of Kshs 135,000/- in respect of costs in the tribunal matter between them; interest on the foregoing at 14% pa from August 6, 1999 until payment in full; and costs of the suit.

2. It was averred that at all material times to the suit the defendant was the landlord of the premises situated on LR No 209/11612 along Moi Avenue, Nairobi (hereafter the suit premises) and the plaintiff occupied a shop on the suit premises as a tenant until July 31, 1999. That the plaintiff and other tenants had challenged the defendant’s increase of rent before the Business Premises Rent Tribunal (hereafter the tribunal) whose decision they also challenged by way of appeals in this court, namely, HCCA No 328 of 1999, HCCA No 342 of 1999, HCCA No 6 of 2000 and HCCA No 65 of 2000 (all consolidated).

3. Further that pursuant to the judgment of this court in the said appeals, the rent arrears paid by the plaintiff to the defendant in the sum of Kshs 2,032,800/-, pursuant to the decision of the tribunal were rendered an overpayment of rent and therefore, the defendant became liable to refund the plaintiff a sum of Kshs 2,018,362. 10/- made up of arrears wrongly paid or rent overpaid, plus costs to the tune of Kshs 135,000/- in respect tribunal cause, as awarded by this court. It was thus averred that the defendant had failed to refund the amounts due to the plaintiff despite demand having been made.

4. On May 30, 2013, following a ruling of this court granting leave to amend the statement of defence, the defendant filed an amended statement of defence and set-off denying the key averments in the plaint and averred that only a sum of Kshs 500,000/- remains due and owing, after it carried out repairs upon the plaintiff vacating the suit premises in a state of neglect and disrepair, having y refused to repair the same. Pursuant to a subsequent application by the plaintiff, Onyancha J in a ruling delivered on June 16, 2015, struck out the defendant’s statement of defence and entered judgment in favor of the plaintiff against the defendant in the sum of Kshs 1,518,362/- with interest & costs. He ordered that the rest of the claim in the sum of Kshs 500,000/- being the set-off amount pleaded by the defendant should go to trial.

5. This is the residual claim that proceeded to full hearing, during which the plaintiff, Ashok Z Shah testified as PW1 and was the sole party to adduce evidence in the proceedings. He adopted his filed witness statement as his evidence-in-chief and denied that at the time he vacated the premises any demand was made of him to carry out any repairs. He asserted that the sum of Kshs 2,032,800 which he had paid to the defendant was obtained by way of a loan. He produced several exhibits including the court’s judgment in HCCA No 328 of 1999, HCCA No 342 of 1999, HCCA No 6 of 2000 and HCCA No 65 of 2000 (all consolidated) (P Exh 1),a letter dated 06. 08. 99 addressed to the defendant’s advocate (P Exh2),the demand notice dated August 1, 2012 (P Exh3) and a copy of statement of account for August 1999 in respect of his Barclays Bank account (P Exh4) in support of his case.

6. Under cross-examination by the defence counsel, he stated that he had not entered into a written lease with the defendant and that he was a sitting tenant. That his obligation on vacating the suit premises was to leave the said premises in good condition which he did, the defendant’s representative acknowledged the foregoing in writing. He said that he had vacated the suit premises in 1999 but had been compelled to obtain a loan facility to enable him to offset the outstanding rent sum. He asserted that his claim for 14% interest was based on the interest rate charged on his loan.

7. The defendant did not call any witness in support of its pleadings at the hearing of the suit.

8. Upon the close of the respective parties’ cases submissions were filed. The plaintiff’s submission was two pronged. Addressing the court on the first issue counsel cited Section 107(1) & 109 of the Evidence Act, the decisions in Karuru Munyoro v Joseph Ndumia Murage & Another, Nyeri HCCC No 95 of 1998 and Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya) HCCC No 68 of 2007 to assert that onus was on the defendant to prove the pleaded set-off. That the defendant did not adduce any evidence as to the expenses allegedly incurred on repairs and in the absence of such evidence, the averments in the defendant’s pleadings remain mere allegations, and that the plaintiff’s evidence was uncontroverted. Therefore, the defendant had not discharged the burden of proving repair expenses amounting to Kshs 500,000/- as pleaded in the set-off.

9. Submitting on the second issue counsel cited Section 26(1) of the Civil Procedure Act and the decision in Mukhisa Buiscuit Manufacturing Company Limited v West End Distributors Limited (1970) EA 469 to argue that the award of interest is discretionary and that on principle, a person who has been unfairly or unlawfully deprived of the use of his money is entitled to an award of interest. Counsel referred to the plaintiff’s P.Exh 4 in that regard to urge that the defendant ought to pay the plaintiff interest at the court rate of 14% per annum on the amount already paid, namely, Kshs 1,518,362. 10/-, the balance of Kshs 500,000/-; and costs of the tribunal proceedings of Kshs 135,000/- as awarded by the High Court.

10. On the part of the defendant, counsel submitted that the plaintiff admitted his obligation as a tenant, of maintaining the interior of the suit premises in a good state of repair during the tenancy; and upon the expiry of the term of the lease to ensure that the interior of the suit premises was in a good state of repair and condition. Citing the provisions of Order 7 Rule 14 of the Civil Procedure Rules, counsel argued that the plaintiff was in breach of its obligation which necessitated repairs by the defendant on the suit premises at a cost of Kshs 500,000/-. Hence the defendant was entitled to set-off the said costs incurred. Concerning the issue of costs awarded by the tribunal, it was contended that the consolidated appeal before the High Court reversed the tribunal’s decision and dealt with the matter after which the monies rents found overpaid were refunded in full. That in the circumstances, the plaintiff was not entitled to the award of tribunal costs as sought in the plaint. In conclusion the court was urged to award the claim in the set-off with costs to the defendant.

11. This court has considered the pleadings as well as the submissions filed in respect of the matter. As noted in this judgment, vide a ruling delivered on 16. 06. 2015, this court struck out the defendant’s statement of defence to the tune of Kshs 1,518,362/- and entered judgment for the foregoing sum while proceeding to order that the rest of the claim go to trial. Therefore, the issues falling for determination is whether the plaintiff is entitled to the sum of Kshs 135,000/- in respect of arrears of the costs in the tribunal and interest thereon at 14% pa from August 6, 1999 until payment in full; and whether the defendant has proved the set-off on a balance of probabilities.

12. Pertinent to the determination of the said issues are the pleadings, which form the basis of the respective parties’ case before this court. In Wareham t/a AF Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”

13. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act which provides that:“107. (1)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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. 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…. 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

14. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.”

15. At the hearing, the plaintiff who testified as PW1 adopted his witness statement whose key assertions were that:“Pursuant to a judgment by the Business Premises Tribunal delivered in Tribunal Case No 12 of 1999 on July 27, 1999, I paid a sum of Kshs 2,032,800/- to the defendant by cheque forwarded by my advocates by letter dated August 6, 1999. The decision of the tribunal aforesaid was reversed by the High Court on October 14, 2008 in HCCA No 328/99, 342/99, 6/2000 and 65/2000 (consolidated) resulting in overpaid rent of Kshs 2,011,045/-.All my efforts to have the overpaid rent refunded to me by the defendant have been futile and no response has been received to the demand notice issued to them thus necessitating these proceedings.” (sic)

16. Addressing the first issue for this court’s determination, the judgment on appeal from the tribunal (P Exh2) and upon which the plaintiff’s claim rests reads in part:“Finally, is the question of costs. We note that both tenants were substantially successful in fighting the proposed increase by the landlord. We would thus award costs to the 1st tenant for the proceedings before the tribunal just in the same way costs were awarded to the 2nd tenant. As for the appeal we order that each party shall beat its own costs.” (sic)

17. The plaintiff was clearly entitled pursuant to the consolidated judgment of this court and was awarded costs in respect of the tribunal proceedings. The issue of costs is therefore spent and cannot be the basis of a new cause of action as impleaded herein. Besides, there was no evidence that the said costs were assessed or taxed in the tribunal, which is the proper forum, if not the appeal, for the plaintiff to pursue his awarded costs. This court therefore finds that the tribunal costs cannot not lie in this cause.

18. On the second issue, the defendant’s set-off is made pursuant to Order 7 Rule 3 of the Civil Procedure Rules which provides that; -“A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.”

19. In the amended statement of defence and set-off, the defendant had averred that; -“4(a)The plaintiff left the premises in a bad state and failed, neglected and/or refused to repair the premises and the defendant had to carry out repairs. Which amounted to Kshs 500,000/= and the same remains due and owing by the plaintiff to the defendant

Particulars of Repairs made by the defendanta.Repairing ceiling in the entrance of the premises.b.Fabricating and fitting metal door to entrance of shop where existing door was removed.c.Removing 25 pieces of angle iron embedded into walls.d.Removing fake ceiling from the suit premises and making good.e.Replacing fluorescent lights removed from the suit premises and rectifying electrical works and switches.f.Repairing wall damages from removal of counters and making good.g.Removing mezzanine floor erected by plaintiff.h.Replacing lights in the area of the mezzanine floor.i.Demolishing wall built in front of rear door and rectifying.Total amount Kshs 500,000/- against the plaintiff’s claim4(b) The draft will seek to set off Kshs 500,000/-.” (sic)

20. The Court of Appeal inMumbi M'Nabea v David M Wachira [2016] eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say;“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:“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 exists.” The above provision provides for the legal burden of proof.However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi &othersv Blue Shield Insurance Company Limited -Civil Appeal No 101 of 2000 [2005] 1 EA 280 where it was held that:“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”

21. Further, the Court of Appeal in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that;“Denning J, in Miller v Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”

22. The defendant failed to call any evidence whatsoever in support of the set-off pleaded in its defence and set-off and it was not open to the defendant’s counsel to attempt to supply evidence through submissions as she has done. The plaintiff on his part denied that any repairs were carried out upon his vacating the suit premises asserting to have left the premises in a good and tenantable condition. He said that the defendant’s representative acknowledged the foregoing in writing. The defendant’s set-off against the plaintiff’s claim is a special damage claim that ought to have been specifically proved.

23. The Court of Appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya [2010] eKLR stated that;“In our view special damages in a material damage claim need not be shown to have actually been incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of. An accident assessor gave details of the parts of the respondent’s vehicle which were damaged. Against each item he assigned a value. We think the particulars of damage and the value of the repairs were given with some degree of certainty. In Ratcliffe v Evans [1892]2QB 524 Bowen LJ said:“The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”

24. The court applying its mind to the law and facts agrees with the plaintiff that the defendant failed to prove the set-off on a balance of probabilities. The set-off therefore fails. Pursuant to the finding, the plaintiff is entitled to the balance of Kshs 500,000/-, the subject of the defendant’s set-off. In the result, the plaintiff’s suit succeeds in part and judgment will be entered for the plaintiff against the defendant in the sum of Kshs 500,000/- in respect of arrears wrongly paid and or rent overpaid, with costs and interest effective from the date of the judgment on the appeal that is, October 14, 2008 until full payment.

25. The plaintiff had sought interest at 14% pa asserting to have procured a commercial loan to pay the defendant. However, no cogent evidence was tendered to show that the plaintiff had obtained a commercial loan to pay the rents and arrears demanded by the defendant based on the overturned tribunal decision. No nexus is apparent between the plaintiff’s bank account statement (P Exh 4) and the said payments. The sums awarded herein will therefore attract interest at court rates.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 13THDAY OF OCTOBER 2022C.MEOLIJUDGEIn the presence of:For the plaintiff: Mr. Sala h/b for Mr. GathuFor the defendant: N/AC/A: Carol