https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3220

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLA NO. E071 OF 2024** **BENSON MBUGUA KIMANI ................................................... APPELLANT** **-VERSUS-** **CAROLINE WARUGONGO ............................................. 1ST RESPONDENT** **PETER MWANGI ........................................................... 2ND RESPONDENT** ***(Being an appeal from the Ruling and Decision of the Business Premises Rent Tribunal at Nairobi delivered on 25th April 2024 by Hon. Ndegwa Wahome, MBS (Vice-Chair) in BPRT Case No. E037 of 2024.)*** **JUDGMENT** 1. This appeal arises from the Ruling of the Business Premises Rent Tribunal (“BPRT” or “the Tribunal”) delivered on the **25th April 2024 by Hon. Ndegwa Wahome, MBS (Vice-Chair) in BPRT Case No. E037 of 2024,** in which the Tribunal dismissed the Appellant’s Reference and Notice of Motion Application both dated 12th January 2024 and condemned the Appellant to pay costs of Kshs.30,000/- to the Respondents. 2. Aggrieved by the said Ruling, the Appellant lodged this appeal through a Memorandum of Appeal dated 24th May 2024, raising six grounds of appeal which can be conveniently grouped as follows: (a) that the Tribunal erred in dismissing the Appellant’s Application; (b) that the Tribunal failed to appreciate the alleged illegal disconnection of electricity and the alleged investments made by the Appellant in the premises; (c) that the Tribunal failed to direct the appointment of a Quantity Surveyor and/or a Rent Inspector to ascertain the magnitude of damages and the nature of the business carried on; and (d) that the Tribunal erred in awarding costs of Kshs.30,000/- against the Appellant. 3. The Appellant prays that this Court do (i) allow the appeal; (ii) set aside the Ruling of the BPRT dated 25th April 2024; (iii) allow the Notice of Motion Application and Reference dated 12th January 2024; (iv) award compensation of Kshs.300,000/- for the alleged illegal disconnection of electricity on 20th August 2023 and a further Kshs.100,000/- for repairs, renovations and improvements; and (v) award costs of the appeal and of the proceedings before the BPRT. 4. Both parties filed written submissions. The Respondents’ written submissions are dated 27th February 2026 and the Appellant’s written submissions in reply are dated 30th April 2026. I have considered the entire Record of Appeal, the Ruling appealed from, the parties’ submissions and the authorities cited. **Background before the tribunal** 1. The Appellant, **Benson Mbugua Kimani,** is the tenant of business premises situated at Ruiru, behind Kenyatta University, of which the Respondents, **Caroline Warugongo and Peter Mwangi,** are the landlords. The Appellant occupies the premises at a monthly rent of Kshs.5,000/-. 2. By a Notice of Motion dated 12th January 2024 brought under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 of the Laws of Kenya, the Appellant moved the Tribunal seeking, inter alia, orders that: (a) the landlords be directed to restore electricity to the demised premises; (b) the landlords be restrained from interfering with the Appellant’s quiet possession; (c) compensation of Kshs.300,000/- for loss of business; and (d) Kshs.100,000/- for repairs and renovations. 3. On 15th January 2024, the Tribunal certified the application as urgent and granted interim orders requiring the landlords to restore the electricity supply, failing which the tenant was at liberty to restore the same and deduct the costs from future rent, pending the inter-partes hearing of the application on 16th February 2024. 4. The Respondents opposed the application through a Replying Affidavit sworn by **Caroline Warugongo** on **9th February 2024** and a Further/Supplementary Affidavit sworn by the same deponent on 10th March 2024. Their case, in summary, was that: (i) the rent paid by the Appellant was exclusive of electricity; (ii) each tenant maintained an individual meter and was personally responsible for purchasing electricity tokens from Kenya Power and Lighting Company Limited (KPLC); (iii) the Appellant had on his own volition closed the shop on 16th September 2023 without provocation; and (iv) the claims for damages and renovations were unsubstantiated. **The ruling appealed from** 1. The learned Vice-Chairperson framed two issues for determination, namely (A) whether the Appellant’s application dated 12th January 2024 was merited; and (B) who should bear the costs of the suit. 2. On the first issue, the Tribunal found that, save for the absence of power, the Appellant had offered no evidence that it was the Respondents who actioned the disconnection. The Tribunal accepted the Respondents’ evidence, supported by photographic annexures CW1, CW2 and CW3, that each tenant had an individual electricity meter and was responsible for his or her own bills. The Tribunal further found that the Appellant had not demonstrated any income lost from the business and could not therefore sustain the claim of Kshs.300,000/-, and that there was no evidence of the alleged repairs and renovations valued at Kshs.100,000/-, particularly because the Appellant had only entered the demised premises barely five months before the alleged disconnection of 20th August 2023. 3. On the second issue, the Tribunal applied the proviso to Section 27 of the Act, holding that costs follow the event, and awarded costs of Kshs.30,000/- to the Respondents. The Tribunal accordingly dismissed both the Reference and the Application dated 12th January 2024. **Submissions on appeal** **(i) The Appellant’s case** 1. The Appellant submits that the Tribunal misapprehended the facts and the law. He maintains that the Respondents disconnected electricity to his premises on 20th August 2023 contrary to Cap. 301, that the disconnection led to loss of business of Kshs.300,000/-, and that he expended Kshs.100,000/- on repairs, renovations and improvements. He places reliance on the principles in **Giella v Cassman Brown & Co. Ltd [1973] EA 360** and submits that he has established a prima facie case with a probability of success. 2. The Appellant further argues that the Tribunal ought to have directed a Rent Inspector to inspect the electricity meter box and the nature of his business, and to have directed a Quantity Surveyor to ascertain the magnitude of damage. He contends that he is a protected tenant under Cap. 301 and that no termination notice in the prescribed form under Section 4 of the Act was ever served on him. **(ii) The Respondents’ case** 1. The Respondents submit that the Appeal lacks merit. They contend that the Appellant did not discharge the burden of proof imposed on him by **Section 107 of the Evidence Act;** that special damages of Kshs.300,000/- were neither specifically pleaded nor strictly proved as required by authorities such as **Idris & Another v Lime & Another [2023] KEHC 18062 (KLR);** that the alleged Kshs.100,000/- for repairs and renovations is not recoverable in the absence of a contractual or statutory basis, and that the Tribunal exercised its discretion properly in awarding costs under Section 27 of the Act. 2. On the failure to appoint a Rent Inspector or Quantity Surveyor, the Respondents rely on the principle in **Lamba v National Social Security Fund & Another [2023] KECA 124 (KLR)** that a court grants only reliefs sought, and that such appointment was never specifically prayed for in the Notice of Motion. **Issues for determination** 1. This being a first appeal, the Court is enjoined to subject the entire evidence on record to a fresh and exhaustive scrutiny and to come to its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses see **Selle v Associated Motor Boat Co. [1968] EA 123 and Peters v Sunday Post Limited [1958] EA 424.** However, the Court should not lightly interfere with the discretion of the Tribunal unless it is shown that the Tribunal acted on wrong principles, took into account irrelevant matters, or arrived at a decision that is plainly wrong. 2. Having considered the pleadings, the Record of Appeal and the submissions, the following four issues fall for determination: 3. **Whether the Tribunal erred in finding that the Appellant had failed to prove that the Respondents disconnected the electricity supply to the demised premises;** 4. **Whether the Tribunal erred in declining to award Kshs.300,000/- as damages for loss of business and Kshs.100,000/- for alleged repairs, renovations and improvements;** 5. **Whether the Tribunal erred in failing to direct a Rent Inspector and/or a Quantity Surveyor to inspect the premises and assess the damages;** 6. **Whether the Tribunal erred in awarding costs of Kshs.30,000/- against the Appellant; and what orders the Court should make.** **Analysis and determination** **Issue 1, Disconnection of electricity** 1. The Appellant’s central grievance is that the Respondents unlawfully disconnected the electricity supply to his premises on 20th August 2023. The legal burden of proving that fact lay squarely on the Appellant by virtue of **Section 107(1) of the Evidence Act,** which 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. 2. On the record before the Tribunal, the only evidence offered by the Appellant in support of the alleged disconnection was his own averment in the Reference and the supporting affidavit. By contrast, the Respondents annexed photographic evidence annexures CW1, CW2 and CW3 showing that each premises in the complex had its own individual electricity meter, and averred on oath that each tenant was responsible for purchasing his or her own KPLC tokens. The Appellant did not produce any token-purchase records, KPLC statements, complaint letters to KPLC, or any other independent evidence to link the absence of power in his premises to any positive act of the Respondents. 3. An interim order had been issued by the Tribunal as far back as 15th January 2024 directing the landlords to restore power and granting the tenant liberty to restore the supply and deduct the costs from future rent. The Appellant has not demonstrated that he ever took advantage of that liberty, nor has he produced KPLC receipts evidencing payment of any reconnection fee or token purchases that were refused. The natural inference, which the Tribunal properly drew, is that the matter of electricity supply was within the Appellant’s own control. 4. I have also considered the documents in the Record of Appeal said to be “photos of the business premises” and the M-PESA statement filed at page 14 of the Record. The M-PESA statement, dated 4th June 2025, post-dates the impugned Ruling of 25th April 2024 by more than a year and could not, as a matter of basic appellate procedure, have been before the Tribunal. An appellate court will not ordinarily receive fresh evidence on appeal save in the limited circumstances set out in Order 42 Rule 27 of the Civil Procedure Rules, 2010, which circumstances have not been demonstrated here. The same observation applies to the photographs marked 4/6/2025. 5. On the evidence properly before the Tribunal, the finding that the Appellant had failed to prove, on a balance of probabilities, that the Respondents disconnected his electricity was a finding open to the Tribunal. I find no error of fact or of law warranting interference with that finding. **Issue 2, Damages of Kshs.300,000/- and Kshs.100,000/-** 1. The claim for Kshs.300,000/- is, in its very nature, a claim for special damages. It is settled law that special damages must not only be specifically pleaded but must also be strictly proved. As the Court of Appeal observed in **Hahn v Singh [1985] KLR 716,** and as reiterated more recently in **Idris & Another v Lime & Another [2023] KEHC 18062 (KLR)**, a court is not entitled to make an award of special damages on the basis of conjecture or a fluid and speculative estimate of loss. 2. Before the Tribunal, the Appellant offered no sales records, no bank or M-PESA statements covering the period before and after 20th August 2023, no invoices, no books of account, no tax returns, no customer affidavits, and no expert valuation of the alleged loss of business. The Tribunal was, with respect, perfectly entitled to find that the figure of Kshs.300,000/- had no evidential foundation, the more so given that liability for the disconnection had not been established. 3. As to the Kshs.100,000/- claimed for repairs, renovations and improvements, the position is governed by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. Section 12(1)(g) of the Act permits the Tribunal to order that a landlord carry out repairs where he is liable to do so and has failed; and Section 12(1)(m) permits the recovery, on termination of tenancy, of the value of improvements carried out with the landlord’s consent. Furthermore, paragraph (vi) of the Third Schedule to the Act implies into every controlled tenancy a covenant by the tenant to be “responsible for all internal repairs and decorations, fair wear and tear excepted.” 4. There was no evidence before the Tribunal that the Respondents had failed in any repairing obligation cast on them by the tenancy, or that they had consented to the alleged improvements on terms that they would compensate the Appellant for them. Moreover, the tenancy had subsisted for barely five months before the alleged disconnection of 20th August 2023, which makes the claim that the Appellant invested Kshs.100,000/- in repairs in so short a period plausible only on cogent evidence evidence which was simply not placed before the Tribunal. The Malware Hardware and Woodmart Timberyard receipts now exhibited in the Record of Appeal at pages 19 onwards were not part of the Tribunal record and, as already noted, cannot be received at this stage. 5. Accordingly, the Tribunal’s refusal to award either Kshs.300,000/- or Kshs.100,000/- was a proper application of the law and the evidence. I find no basis to interfere. **Issue 3, Failure to appoint a Rent Inspector or Quantity Surveyor** 1. Grounds 3, 4 and 5 of the Memorandum of Appeal complain that the Tribunal did not direct a Rent Inspector to inspect the meter box and the nature of the Appellant’s business, nor did it direct a Quantity Surveyor to assess damages. Section 12(1)(j) of Cap. 301 indeed empowers the Tribunal to direct investigations by Rent Inspectors. That power, however, is discretionary. 2. I have examined the Notice of Motion dated 12th January 2024 pages 11–12 of the Record of Appeal. The reliefs sought therein do not include a prayer for the appointment of a Rent Inspector or a Quantity Surveyor. As the Court of Appeal reminded us in **Lamba v National Social Security Fund & Another [2023] KECA 124 (KLR),** it is a cardinal principle that a court grants only the reliefs sought by a party. Where a party did not invite the Tribunal to exercise a particular discretion, it is difficult, on appeal, to fault the Tribunal for not having exercised it. 3. More fundamentally, the appointment of an inspector or surveyor is not a substitute for the basic evidential burden that rests on a claimant. The Appellant could, and should, have produced KPLC records, sales records, photographs taken contemporaneously with the alleged disconnection, and quotations or receipts for the works he says he carried out. The Tribunal was not obliged to embark on a fishing expedition to find evidence which it was the Appellant’s duty to bring forward. Ground 3, 4 and 5 of the Appeal therefore fail. **Issue 4, The notice of termination argument** 1. In his written submissions on appeal, the Appellant raises a fresh point: that he is a protected tenant under Section 4 of Cap. 301 and that no termination notice in the prescribed form (Form A) was served upon him before the alleged interference. He cites **Munaver N. Alibhai T/A Diani Boutique v South Coast Fitness & Sports Centre Limited (1995) eKLR** in support. 2. With respect, this argument misconceives the case actually before the Tribunal. The Appellant’s Reference and Notice of Motion did not seek a declaration that any purported termination notice was void; they sought restoration of electricity, an injunction and damages. The Tribunal’s Ruling, properly read, does not in fact terminate the tenancy. On the Respondents’ own pleadings, the Appellant remains in possession of the demised premises and the tenancy subsists. There is therefore no termination notice for this Court to strike down. To the extent that the Appellant apprehends a future unlawful eviction, the protections of Cap. 301 remain available to him, but they do not afford a ground for setting aside the Ruling complained of. **Issue 5, Costs awarded by the Tribunal** 1. Ground 6 of the Memorandum of Appeal challenges the award of Kshs.30,000/- in costs against the Appellant. The Tribunal correctly identified the governing principle: the proviso to Section 27 of the Civil Procedure Act, which embodies the rule that costs follow the event unless the court, for good reason, orders otherwise. Section 12(1)(k) of Cap. 301 confers a parallel power on the Tribunal to award costs in respect of references made to it. 2. Costs are pre-eminently a matter for the discretion of the Tribunal. An appellate court will only interfere where the discretion has been exercised on a wrong principle or has resulted in a manifest injustice see **Republic v Rosemary Wairimu Munene ex parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd Misc. Application No. 6 of 2004; cited with approval in DGM v EWG [2021] eKLR**. The figure of Kshs.30,000/- in a contested matter involving claims totalling Kshs.400,000/- cannot, in the circumstances of this case, be described as excessive or unprincipled. The fact that the Appellant is not in rent arrears, while perhaps a matter of personal credit, is not a good reason”within the meaning of the proviso to Section 27 for depriving the successful party of its costs. 3. Ground 6 of the Appeal accordingly fails. **Disposition** 1. In the result, and having considered the entire Record, the submissions of the parties and the authorities cited, I am not persuaded that the learned Vice-Chairperson of the Business Premises Rent Tribunal erred either in fact or in law in dismissing the Appellant’s Reference and Notice of Motion dated 12th January 2024 or in awarding costs of Kshs.30,000/- against the Appellant. 2. The Appellant has not discharged the burden which rests on an appellant to demonstrate that the Tribunal’s findings of fact were against the weight of the evidence, or that its application of the law was erroneous. 3. Accordingly, this Court makes the following final orders: 4. **The appeal dated 24th May 2024 is hereby dismissed in its entirety.** 5. **The Ruling and Orders of the Business Premises Rent Tribunal dated 25th April 2024 in BPRT Case No. E037 of 2024 are hereby upheld and affirmed.** 6. **The Appellant shall pay the Respondents the costs of this appeal assessed at Kshs.40,000/- all inclusive.** **DATED, SIGNED AND DELIVERD VIRTUALLY THIS 28TH DAY OF MAY 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:-** **Benson Mbugua Kimani the Appellant in person.** **Ms. Wanjiru Mwangi h/b for Mr. Kalii for the Respondents.** **Court Assistants: Mary Ngoira and David Ngoosa.**