https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7820

Eens Ltd v Dac Motors Ltd (Civil Suit E001 of 2021) [2026] KEHC 7820 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7820 (KLR) Republic of Kenya In the High Court at Machakos Civil Suit E001 of 2021 RC Rutto, J June 4, 2026 Between Eens Ltd Plaintiff and Dac Motors Ltd Defendant Judgment 1.By way of a plaint dated 2nd September, 2020, the Plaintiff sued the Defendant seeking the following orders:-a.Rent arrears owing being Kshs 1,142, 090/=;b.Rent for the remainder of the lease period being Kshs 20,248,296/=;c.Costs for the restoration of the suit premises amounting to Kshs 1,371,105/=;d.General damages for breach of the lease agreement;e.Costs of this suit;f.Interests on a, b, c and d above at court rates from date of filing suit till payment in full and;g.Any other relief as this court may deem fit and just to grant. 2.The Plaintiff alleges that on 1st February, 2017, it entered into a Lease Agreement with the Defendant over godown No. 2 on L.R No. 12715/217 I.R 44413/1 N.W Athi River, Machakos District, (the suit premises). It avers that the lease was drawn in conformity with the provisions of the repealed Registration of Titles Act, the Land Act No. 6 of 2012 and the Land Registration Act No. 3 of 2012. The lease was to run for a fixed term of 6 years from 1st February, 2017, to 31st January, 2023, with an option to renew. The Plaintiff further avers that the lease was duly registered on 20th November, 2018 as IR No. 4565/3/70. 3.According to the Plaintiff, upon execution of the lease, the Defendant took possession of the premises, fitted and customized them to suit its operations, and moved its properties therein. However, on 8th September, 2018, the Defendant vacated the premises without notice. The Plaintiff contends that the lease did not contain a break clause and was therefore not subject to termination by either party through notice or otherwise. 4.The Plaintiff further alleges that the Defendant vacated the premises without its knowledge and was in rent arrears of Kshs. 1,142, 090/= at the time of vacating. It urges that in the absences of a break clause, and given that the Defendant vacated the premises without consultation, the Defendant remains liable to pay the rent for the remainder of the lease period from November 2018 to 31st January, 2023, amounting to Kshs 20,248, 296/=. 5.Additionally, the Plaintiff states that the Defendant failed to restore the premises to a good and tenantable condition as required under the lease, necessitating repairs at a cost of Kshs. 1,371,105/=. The Plaintiff therefore claims rent arrears of Kshs. 1,142,090/=, rent for the remainder of the lease period of Kshs. 20,248,296/= and restoration costs of Kshs. 1,371, 105/=. 6.In its Defence dated 13th July. 2021, the Defendant denies executing any lease agreement with the Plaintiff and contends that no valid lease existed capable of registration. It avers that the Plaintiff purported to register a lease on 20th November, 2018, three months after the Defendant had vacated the suit premises and terminated the tenancy. The Defendant therefore asserts that the purported registration was illegal and void ab initio. 7.The Defendant further states that it vacated the premises after its business operations were frustrated by the Plaintiff and following unsuccessful negotiations between the parties. It maintains that the Plaintiff was aware of its intention to vacate and that it left the premises in August 2018 after settling all outstanding rent. 8.The suit proceeded to hearing with each party calling one witness. Thereafter, both parties filed their respective submissions. 9.At the trial, PW1, John Gichuhi, the Plaintiff’s property manager adopted his witness statement dated 2nd September, 2020, and produced the Plaintiff’s list of documents dated 2nd September, 2020, as Exhibits 1 to 4. He testified that the lease agreement (PExh1) was duly signed by both parties and registered. He stated that the lease was for a fixed term of six uninterrupted years and did not contain an exit clause. 10.He further testified that prior to the lease, the parties had executed a letter of offer, and that rent was payable quarterly in advance. He stated that although there were meetings between the parties, these were only for rent discussions and the Defendant never indicated an intention to vacate. He testified that the Defendant nonetheless vacated the premises on 8th September, 2018, having occupied the premise from February 2017. 11.PW1 stated that the Defendant left without notice and accrued rent arrears of Kshs. 1,242,090/= for the period July to August 2018 out of which only Kshs. 100,000/= was paid after follow up. He emphasized that the Defendant remained liable for rent up to January 2023 due to absence of an exit clause in the lease. 12.He also testified that the Defendant had been operating a car garage on the premises and failed to restore the building upon vacating, compelling the Plaintiff to undertake repairs at a cost of Kshs. 1,371,105/=. He denied that the Plaintiff frustrated the Defendant’s business and maintained that the lease was willingly executed. He confirmed that a demand letter was issued and urged the Court to grant the orders sought in the plaint. 13.On cross examination, PW1 testified that he was not employed by the Plaintiff at the time the lease agreement was executed. He confirmed that the Defendant took possession of the premises in 2017. When referred to the lease agreement and the Defendant’s witness statement, he noted that the signatures on the two documents differed. He stated that the advocate who attested the lease was instructed and paid by the Plaintiff and that he was not present to confirm whether the Defendant signed the lease. 14.He further testified that prior to the Defendant vacating the premises, the rent payments were generally up to date although some arrears existed, and was unsure why the Defendant moved out. He stated that the Plaintiff owned 16 godowns in Syokimau along Mombasa road. When he was referred to PExhibit 3, an invoice dated 22nd March, 2019, he noted that the invoice did not specify the particular godown that was being repaired and confirmed that it was not a receipt. 15.He stated that rent invoices were issued quarterly and that rent was subject to an annual escalation of 10%. As at July 2018, rent arrears stood at Kshs. 215,490/=. He further testified that legal fees of Kshs. 139,200/= had been debited in May 2017. He stated that the caretaker of the premises confirmed that the Defendant vacated in September 2018. He also clarified that the sum of Kshs. 450,000/= paid on 29th November, 2021, and 30th January, 2017, was rent and not a deposit. 16.On re-examination, PW1 clarified that the lease was signed by both parties. He explained that the apparent interchange of signatures arose because the lessor signed on page 19 while the lessee signed on page 18 and he himself signed all pages of the lease. He maintained that there was no impropriety in the use of the same advocate by both parties. 17.Regarding the invoice, he stated that it related to repairs carried out on the leased godown. He reiterated that the sum of Kshs. 450,000/= paid was rent and not deposit. 18.The above marked the close of the Plaintiff’s case. 19.DW1, Clifford Munya, a Director of the Defendant adopted his witness statement dated 14th July, 2021, and produced the Defendant’s list and bundle of documents dated 13th July, 2021. He testified that the Defendant company had two directors one of whom passed away prior to the alleged execution of the lease. 20.He stated that the Plaintiff had been the Defendant’s landlord for approximately one year and few months from February 2017 to end of July 2018. He denied signing the lease agreement and upon being referred to it, stated that the signatures therein were not his. He also stated that he does not know the attesting advocate and could not confirm who executed the agreement. 21.He stated that the Defendant vacated the premises at the end of July 2018 as the business had become expensive and unsustainable; and due to unfavorable conduct by the Plaintiff, including being denied access to the premises after the godowns were locked. He testified that he informed the caretaker, Samuel Thuranira, who acted as an intermediary between the parties, as well as the Plaintiff’s office, and was allowed to vacate by the caretaker and security personnel. 22.He testified that rent invoices were raised quarterly and stated that by the time the Defendant vacated, all rent had been paid, although payments were sometime paid irregularly. Referring to Plaintiff Exhibit 2, the Defendant’s statement of account, he acknowledged that it included legal fee for Kshs. 139, 200/= but he stated that he did not know the basis of those charges. He further testified that in February 2019, the Plaintiff involved the police, who allegedly harassed him and compelled him to pay Kshs. 100,000/= without a proper computation of statement of account. He maintained that the premises were left in a tenantable condition. 23.On cross-examination, DW1 confirmed that the signature on page 2 of his witness statement was his. When referred to the lease agreement, he acknowledged that the signature at the bottom of each page resembled his signature, but claimed that the signature on page 18 although similar, was not his. 24.He testified that he conducted a motor vehicle repair business in the godown and stated that he did not make any structural alteration to the premises. He confirmed that rent invoice were issued quarterly, although payments were sometimes made within the quarter. He stated that while the arrangement for quarterly payment of rent existed, it was not reduced in writing. 25.He testified that rent was paid through cheques and money transfer and maintained that there were no arrears at the time the Defendant vacated, although he had not produced bank statements and relied on the Plaintiff’s statement of account. He stated that parties did not agree on the duration of the tenancy, 26.Upon being referred to the lease document, he read out that the term ran from, 1st February, 2017, up to 30th December, 2022, with rent payable quarterly in advance, and that the agreement did not contain a termination clause. He stated that he gave three months’ notice at the beginning of the 2nd quarter and also informed the caretaker but admitted that he had not produced any evidence of such notice. 27.He acknowledged the Plaintiff’s statement of account as reflecting payments made and stated that any additional claim related to the fourth quarter. He maintained that his business did not damage the premises and that the caretaker inspected them before permitting him to vacate. He stated that the caretaker acted as the Plaintiff’s representative. He confirmed that the said caretaker is not before court as a witness. 28.Referring to Paragraph 4 of the statement of defence, he testified that the alleged acts of frustration including being denied access to premises when rent payment delayed and issues relating to water supply, which he communicated through the caretaker compelled him to vacate because of the acts of frustration and it became expensive. He also stated that he made payments totaling Kshs. 500,000/= by cheques. 29.When referred again to the lease agreement, he denied the signature on page 18 was his and stated that he was unfamiliar with signature on page 19. He clarified that the Defendant company was the lessee and that the Plaintiff company was the lessor and disputed the Plaintiff’s explanation regarding the alleged interchange of signatures. 30.On re-examination, DW1 stated that he did not make any alterations or improvements to the premises. He explained that by the time he vacated, the next quarter beginning August had not commenced and that he never occupied the premise in that quarter. He stated that according to the Plaintiff’s statement of account, he had paid a cumulative amount of Kshs. 450,000/=. 31.He further stated that a contract is executed at the execution page and not merely by signatures at the bottom of each page and maintained that the lease was not properly executed. He reiterated that he dealt primarily with the caretaker, who operated from an office within the premises on behalf of the Plaintiff. 32.After the close of evidence, parties filed their respective submissions. The Plaintiff’s submissions are dated 10th September, 2025, while the Defendant’s submissions are dated 11th February, 2026. Plaintiff’s submissions 33.The Plaintiff began its submissions with a brief background of the matter. Its case is founded on a written lease agreement executed on 1st February, 2017 for a commercial godown, creating a fixed-term tenancy of six years without any provision for early termination. Pursuant to this agreement, the Defendant took possession of the premises and paid rent. However, on 8th September, 2018, the Defendant allegedly vacated the premises abruptly, without notice or mutual agreement, well before the agreed expiry date of January 2023. Although the lease was registered on 20th September, 2018, under the Land Registration Act, the Plaintiff maintains that both its contractual validity and subsequent registration render it binding and enforceable. 34.As a result of the Defendant’s premature exit, the Plaintiff claims rent arrears of Kshs. 1,142,090/=, damages for breach of lease initially quantified as Kshs. 20,248,296/= for the unexpired term, and Kshs. 1,371,106/= incurred in restoring the premises after they were allegedly left in a dilapidated condition. 35.The Plaintiff identified two issues for determination; whether a valid lease agreement existed between the parties and whether there was a breach of the lease and if so, the appropriate remedies. 36.On the validity of the lease, the Plaintiff submits that the Defendant’s denial of execution is an afterthought unsupported by evidence. Although, the Defendant’s director disowned the signature on the lease, he failed to provide expert evidence, such as a forensic report, to substantiate the allegation of forgery. The Plaintiff points to the consistency of the signature across documents and urges the Court to reject the denial. 37.Reliance is placed on the authority of Koinange & 13 others v Charles Karuga Koinange [1986] KEHC 3 (KLR), where the court held that allegations of forgery must meet a high evidentiary threshold and cannot be based on inconclusive or circumstantial claims. Further, the Plaintiff invokes Section 54 of the Land Registration Act arguing that registration creates a presumption of authenticity, thereby shifting the burden to the Defendant to disprove the lease. In support, it cites Doshi v Chemutut & 7 others (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR). 38.The Plaintiff also relies on Section 3(3) of the Law of Contract Act to argue that the lease was enforceable inter partes even prior to registration. 39.The Plaintiff further submits that the Defendant’s conduct taking possession, occupying the premises for 19 months and paying rent amounts to acceptance of the lease terms and gives rise to estoppel under Section 120 of the Evidence Act. Authorities relied on include Diamond Homes Limited v Shapi (Civil Appeal 118 of 2021) [2024] KECA 1161 and Busienei v Lizano Limited KEHC 4483 which emphasizes that a contract may be inferred from conduct demonstrating offer, acceptance, and consideration. 40.The Plaintiff also invokes the doctrine of equitable estoppel, arguing that the Defendant cannot deny the existence of the lease after benefiting from it. In this regard, reliance is placed on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR to support the principle that a party cannot approbate and reprobate. Similarly, Onyancha & another v Lagat (Civil Appeal E039 of 2022) [2025] KEELC 672 is cited to reinforce the position that a binding contract may arise from clear offer, acceptance and consideration and that a party who has enjoyed contractual benefits cannot later deny its existence. The Plaintiff contends that the Defendant’s failure to challenge the lease during the tenancy further weakens its position. 41.On the issue of breach, the Plaintiff submits that the Defendant fundamentally breached the lease by unilaterally vacating the premises in the absence of a break clause, 4 years and 5 months before expiry of the term. Reliance is placed on Kwanza Estates Limited v Jomo Kenyatta University of Agriculture & Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) where the Supreme Court held that unilateral termination of a lease without a termination clause constitutes a breach. 42.While acknowledging the duty to mitigate loss, the Plaintiff argues that mitigation was constrained because the premises were left in a dilapidated state and were of a specialised nature with limited demand. It further notes that in Kwanza Estates (Supra), the court declined to award rent for the entire unexpired term but instead granted compensatory damages equivalent to a reasonable re-letting period, of three months. Drawing from this reasoning, the Plaintiff urges the Court to award damages equivalent to at least one quarter’s rent, consistent with the lease’s quarterly payment structure and the disruption caused by the premature termination. 43.Additionally, the Plaintiff submits that the Defendant breached its obligation to maintain the premises in good and tenantable condition, resulting in repair costs of Kshs. 1,371,106/=. In support, reliance is placed on Kenol Kobil PLC v Canarian Holdings Limited’ Canarian Holdings Limited (Plaintiff); Kenol Kobil PLC (Defendant) (Environment & Land Case 111 of 2019 [2023] KEELC 20945 (KLR) where the court awarded damages for failure to restore leased premises. 44.The Plaintiff emphasizes that the repair costs were specifically pleaded, supported by invoices and receipts and were not controverted by the Defendant. It also reiterates the claim for rent arrears of Kshs. 1,142,090/=, supported by a statement of account. 45.Finally, the Plaintiff seeks equitable relief in the form of specific performance, arguing that damages alone may not fully compensate for the loss of a structured rental income and the disruption caused. Reliance is placed on Gharib Suleman Gharib v Abdulrahman Mohamed Agil LLR No. 750 (CAK) Civil Appeal No. 112 of 1998 where the Court of Appeal held that specific performance may be granted where damages are inadequate to achieve complete justice. 46.In conclusion, the Plaintiff contends that the Defendant’s attempt to deny the lease is untenable in light of statutory provisions, case law, and equitable doctrines. It urges the Court to uphold the sanctity of contracts by granting the remedies sought. Defendant’s submissions 47.The Defendant’s submissions begin with brief background of the case. It opposes the Plaintiff’s claim in its entirety as set out in the Plaint dated 2nd September, 2020. The Defendant frames the dispute around three key issues: whether the lease agreement dated 1st February, 2017, is legally binding; whether any agreement existed between the parties and if so, whether the Defendant is in breach; and whether the Plaintiff is entitled to the reliefs sought. 48.On the first issue, the Defendant contends that the lease agreement dated 1st February, 2017, is not legally binding as it was never executed by the Defendant. While admitting that it occupied the Plaintiff’s premises at Godown No. 2 on LR No. 12715/217 from around February 2017, the Defendant maintains that the tenancy was not governed by any written lease but arose in the absence of a signed agreement. 49.The Defendant asserts that although a draft lease was provided by the Plaintiff, it was never executed, and its terms cannot therefore be enforced. Reliance is placed on Section 37(2) of the Companies Act, 2015, which requires that a company executes a document either through two authorised signatories or by a director in the presence of a witness. The Defendant argues that the alleged lease does not meet this statutory requirement, as it was neither properly signed nor attested, and neither PW1 nor DW1 could identify the signatories. 50.The Defendant further challenges the credibility of the lease on the basis that it was registered on 20th November, 2018, approximately one year and nine months after its alleged execution and three months after the Defendant had vacated the premises thereby suggesting bad faith on the part of the Plaintiff. On this basis, the Defendant submits that the lease is invalid, not binding and incapable of regulating parties’ relationship. Consequently, it argues that the tenancy falls within the ambit of a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, and that jurisdiction properly lies with the Business Premises Rent Tribunal rather than the court. 51.On the second issue, the Defendant submits that although no valid written agreement existed, there was an oral agreement under which it took possession of the premises and paid rent. It emphasizes that rent was paid monthly, despite invoices being issued quarterly, demonstrating that the arrangement was not governed by the alleged lease terms. 52.The Defendant argues that for a binding contract to exist, there must be offer, acceptance, and consideration, and an intention to create legal relations. In support, it relies on Omar Gorhan v Municipal Council of Malindi (Council Government of Kilifi) and Overlook Management Kenya Ltd [2020] eKLR, which cited Garvey v Richards (2011) JMCA 16 for the proposition that a contract must demonstrate intention, certainty and enforceable obligations. 53.While conceding that it intended to lease the premises and paid rent as consideration, the Defendant denies any intention to be bound by the specific terms of the unexecuted lease, as evidenced by its refusal to sign it. The Defendant therefore characterizes the arrangement as a periodic tenancy under Section 57 of the Land Act, specifically a month-to-month tenancy based on the pattern of monthly payments. It contends that it fully discharged its obligations under this arrangement and is not in breach. 54.The Defendant further alleges that it did not enjoy quiet possession, asserting that the Plaintiff’s conduct interfered with its use of the premises and ultimately forced it to vacate in August 2018. It states that prior to vacating, it settled all outstanding dues and informed the Plaintiff’s caretaker of its intention to leave. 55.The Defendant relies on the Plaintiff’s statement of account, which shows an outstanding balance of Kshs. 215,490/= as at 31st July, 2018, but disputes the inclusion of legal fee of Kshs. 139,200/= on the basis that they were neither disclosed nor properly invoiced and were allegedly linked to the registration of an agreement that was never validly executed. 56.It further states that it made a payment of Kshs. 100,000/= in February 2019 following persistent demands, despite the actual balance being Kshs. 76,290/= thereby resulting in a credit in its favour. On this basis, the Defendant maintains that it is not in breach and that the Plaintiff is in fact indebted to it. 57.On the third issue regarding entitlement to reliefs, the Defendant submits that the Plaintiff is not entitled to any of the prayers sought. It relies on the decision in Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) to emphasize that damages for breach of contract are compensatory in nature and intended to restore the claimant to the position it would have been but for the breach, subject to the duty to mitigation loss. 58.The Defendant further submits that general damages are not awardable alongside special damages and that damages must be specifically pleaded and proved. 59.With respect to rent arrears, the Defendant disputes the claim of Kshs. 1,142,090/= arguing that the Plaintiff improperly invoiced rent for the period covering August to October 2018 despite the Defendant having vacated in August 2018. It reiterates that as at 31st July, 2018, the outstanding amount was Kshs. 215,490/= inclusive of the disputed legal fee of Kshs. 139,200/=. 60.The Defendant maintains that following its payment of Kshs. 100,000/= in February 2019, it had settled all legitimate dues. It also notes that the Plaintiff did not claim rent in lieu of notice which it argues supports its position that notice of termination was given to the caretaker. Accordingly, the Defendant contends that the claim for rent arrears is unmerited. 61.Regarding the claim for rent for the remainder of the lease term, the Defendant submits that it is not liable to pay rent for a period not contractually agreed upon, given the alleged invalidity of the lease. It further argues that even if the lease was valid it would be unconscionable to compel payment for the unexpired term after vacating, particularly in light of the Plaintiff’s alleged interference with its quiet enjoyment of the premises. Again, relying on Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR), the Defendant emphasizes that the appropriate remedy if any, would be limited to rent up to the date of vacating and reasonable damages for breach, rather than recovery of rent for the entire unexpired term. 62.On the claim for restoration costs of Kshs. 1,371,105/=, the Defendant denies liability, asserting that it left the premises in good and tenantable condition and did not carry out any alterations, as its business only required open space. 63.The Defendant challenges the evidentiary value of the Plaintiff’s documents, noting that the invoices refer generally to works carried out on a godown along Mombasa Road without specifying the particular unit occupied by the Defendant. It further contends that the invoices lack sufficient detail regarding the nature of the works, appear excessive, and are not supported by receipts evidencing actual payment. Additionally, it argues that there was no agreement obligating it to undertake renovations and that the Plaintiff has failed to discharge its burden of proof. 64.On the claim for general damages, the Defendant submits that such damages are not recoverable for breach of contract. It relies on Sundowner Lodge Limited v Kenya Tourist Development Corporation [2023] KECA 1131 (KLR), where the Court of Appeal affirmed that general damages are generally not ordinarily awardable for breach of contract except in exceptional circumstances. Further reliance is placed on Total (Kenya) Limited (formerly Caltex Oil Kenya Limited) v Janevams Limited [2015] KECA 822 (KLR) which reiterated that damages for breach of contract are generally quantifiable and therefore not general in nature. 65.In conclusion, the Defendant urges the Court to find that the lease agreement is invalid, that the tenancy was periodic and properly terminated, that the Defendant is not in breach and that the Plaintiff has failed to prove its claims. Accordingly, it prays that the Plaint dated 2nd September, 2020, be struck out with costs. Analysis and Determination 66.I have carefully considered the pleadings, the oral and documentary evidence presented by both parties, as well as their respective submissions. In my view, the following issues arise for determination:a.Whether there existed a valid and binding lease agreement between the parties and the nature of the tenancy relationship;b.Whether the Defendant breached the terms governing that tenancy and if so, to what extent;c.Whether the Plaintiff is entitled to the reliefs sought. Whether there existed a valid and binding lease agreement between the parties and the nature of the tenancy relationship 67.On this first issue, I have evaluated the competing positions advanced by the parties alongside the evidence on record. 68.The Plaintiff’s position is that a written lease agreement dated 1st February, 2017, was duly executed between the parties and subsequently registered. In support of this position, the Plaintiff produced the lease document as an exhibit and maintained that it was signed by both parties and duly attested to by an advocate. The Plaintiff further submitted that the signatures appearing on the lease are consistent with those appearing on other documents attributable to the Defendant, and that the Defendant took possession of the premises and performed obligations under the lease, including payment of rent. 69.The Defendant, on the other hand, challenges the validity of the lease on the basis that its director did not sign the execution section of the agreement. The director contends that the signature appearing at the execution page is not his and that the absence of proper execution, the agreement is invalid. However, and quite significantly, the same director admitted during cross-examination that the signatures appearing at the bottom of the other pages of the lease are indeed his. This admission substantially undermines the credibility of the Defendant’s denial. 70.The law is well settled that the burden of proof lies on the party who asserts a particular fact. Sections 107 to 109 of the Evidence Act, requires that a party alleging invalidity, forgery or non-execution of a document must prove such allegations. This principle was articulated in Koinange & 13 others v Charles Karuga Koinange [1986] KEHC 3 (KLR) where the court emphasized that allegations of forgery or fraud cannot be founded on mere assertions or suspicion but must be supported by cogent and credible evidence. 71.In the present case, the Defendant, beyond denying the signature, has not placed before this Court any expert evidence, such as a forensic document examiner’s report, to support the contention that the signature on the execution page is not his. Nor did the Defendant call the attesting advocate or any other witness to challenge the authenticity of the lease. The Defendant’s witness having later conceded to signing the rest of the pages save the execution page, his denial therefore remains unsubstantiated. 72.Conversely, the Plaintiff produced the lease document and demonstrated a degree of consistency in the signatures across its pages, an aspect partially admitted by the Defendant. In these circumstances, the argument that failure to sign the execution page automatically invalidates the entire agreement is not persuasive. Courts are obligated to look beyond technical objections and consider the totality of the evidence, including the conduct of the parties. This position was aptly stated in Eldo City Limited vs. Corn Products Kenya Ltd & another [2013] eKLR where the Court emphasized that the intention of the parties must be discerned from both the document and their conduct. Similarly, in Storer v Manchester City Council [1974] 1 WLR 1403, Lord Denning observed that the existence of a contract is to be determined objectively from what the parties said and did, rather than their unexpressed intentions. 73.In the instant case, it is not disputed that the Defendant took possession of the suit premises in February 2017, occupied them for a considerable period and paid rent pursuant to the arrangement contemplated in the lease. Such conduct is consistent with the existence of a binding contractual agreement. The Defendant’s witness also testified that a draft lease was submitted to it for review. The Defendant cannot on one hand admit to signing portions of the lease and acting in accordance with it, and on the other hand seek to disown it based on an unproven allegation relating to the execution page. To do so would offend the well-established principle that a party cannot approbate and reprobate. 74.In light of the foregoing and in the absence of cogent evidence to the contrary, I am satisfied that the lease agreement dated 1st February, 2017, was duly executed and is valid and binding upon the parties. The Defendant’s partial admission regarding the signatures, coupled with its conduct in occupying the premises and paying rent, reinforces this conclusion. This is notwithstanding whether the rent was being paid on a monthly or quarterly basis, or that the document was registered on a date that the Defendant had already vacated the premises. 75.Consequently, I find that the relationship between the parties was governed by the terms of that lease and not by a periodic or informal tenancy arrangement as asserted by the Defendant. Whether the Defendant breached the terms governing the tenancy and if so, to what extent 76.Having found that a valid and binding lease agreement existed between the parties, it follows that their respective rights and obligations must be construed within the framework of that lease. 77.It is common ground that the Defendant took possession of the suit premises in February 2017 and remained in occupation until around August/September 2018. It is equally undisputed that the Defendant vacated the premises prior to the expiry of the agreed lease term, being 31st January, 2023. The central issue, therefore is whether the circumstances surrounding the Defendant’s exit amounted to a breach of the lease. 78.The Plaintiff contends that the lease did not contain a termination or break clause and that the Defendant vacated the premises unilaterally, without notice or consent, thereby fundamentally breaching the agreement. The Defendant, on the other hand, asserts that it was compelled to vacate due to the Plaintiff’s conduct, including alleged denial of access and other operational challenges, and that it communicated its intention to vacate through the caretaker, the Plaintiff’s agent based at the suit premises. 79.The legal position is that where parties enter into a fixed-term lease without a termination clause, they are bound by its terms for the full duration unless discharged by mutual agreement or operation of law. The Supreme Court in Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) (6 December 2024) (Judgment) affirmed that unilateral termination of such a lease, in the absence of a contractual provision permitting the same, constitutes a breach of the lease. The court held that:-“ 18.The impugned lease lacked a termination clause, making the respondent’s actions a unilateral termination. By proceeding with a unilateral termination, the respondent effectively breached the terms of the lease, rendering the termination notice void.” 80.In the present case, there is no evidence of any mutual agreement to terminate the lease. The Defendant’s assertion that it informed the caretaker of its intention to vacate does not in my view, amount to proper or sufficient notice under a formal lease arrangement. More importantly, the Defendant conceded that no documentary evidence was produced to support that such notice was given. Further, the caretaker, who was said to have received the notice, was not called as a witness to corroborate that assertion. In the absence of such evidence, the claim of notice remains unproven. 81.The Defendant’s reliance on alleged frustration or interference with quiet enjoinment is equally unconvincing. While it alleged denial of access and the water challenges, no independent or documentary evidence was tendered to substantiate these claims or to demonstrate that such conducts were persistent, or sufficiently serious to constitute a repudiatory breach of the lease. Notably, the Defendant did not formally lodge complaints with the Plaintiff, nor did it invoke any contractual remedies prior to vacating. The allegations therefore lack the evidential weight necessary to justify unilateral abandonment of the premises. This is buttressed by the fact that the Defendant testified that it paid rent irregularly and its business was struggling. 82.In the circumstances, this Court finds that the Defendant’s decision to vacate the premises prior to the expiry of the lease term, without mutual agreement and without lawful justification, amounted to a clear breach of the lease agreement. 83.Turning to the issue of rent arrears, the Plaintiff claims Kshs. 1,142,090/= at the time of vacating. However, the Plaintiff’s own statement of account indicates that as at 31st July, 2018, the outstanding balance stood at Kshs. 215,490/=. This sum included a charge of Kshs. 139,200/= described as legal fees which the Defendant disputed on the basis that it was neither disclosed nor agreed upon. The Plaintiff did not provide sufficient justification or basis for this charge, nor demonstrate that it formed part of the agreed obligations under the lease or that the Defendant was made aware of it prior to it being debited from the account as attributable to the Defendant. 84.In the absence of such proof, this Court is not persuaded that the legal fees are recoverable. It is further not in dispute that the Defendant made a payment of Kshs. 100,000/= in February 2019. Consequently, the Defendant’s liability is limited to the legitimate and proven rent arrears, being the balance after excluding the unproven legal fees and taking into account the payment made. 85.With respect to the claim for rent for the remainder of the lease term, although the Defendant’s conduct amounted to a breach, the law does not permit automatic recovery of the rent for the entire unexpired term as a matter of course. The principle of mitigation of loss requires a landlord to take reasonable steps to re-let the premises. In Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) (6 December 2024) (Judgment), the Supreme Court held that it would be both unreasonable and unconscionable to compel a tenant to pay rent for the entire unexpired term after vacating the premises. Instead, the appropriate remedy lies in damages equivalent to a reasonable period required to secure a replacement tenant. The court held that:“ 19.Where the parties were compelled to disengage without mutual agreement, resulting in the termination of the lease either by the tenant vacating the premises voluntarily or by eviction initiated by the landlord, that shall be deemed a breach of contract. Consequently, notwithstanding the absence of a termination clause, it would be unconscionable to compel a tenant to remain in premises they no longer wished to occupy. Equally, it would be unreasonable to claim rent for the unexpired lease term after the tenant had vacated. Therefore, the remedy for such termination was rent due up to the date of vacating and damages for breach of contract. In such a case, the remedy was for the party responsible for the breach to be liable to pay damages.Damages for a breach of contract aimed, subject to mitigation, to restore the claimant to the position they would have been in had the breach not occurred. That principle, known as restitutio in integrum, underscored the compensatory nature of contractual damages. However, general damages for breach of contract were not awardable in addition to quantified or special damages. Damages should encompass losses arising naturally from the breach itself or those reasonably foreseeable by both parties at the time the contract was formed. Such damages were special damages, which must be specifically pleaded and proven.” 86.Applying that reasoning to the present case, I find that while the Defendant is liable for breach arising from premature termination, such liability cannot extend to the full rent for the remainder of the lease term from the time it vacated the suit premises up to January 2023. The Plaintiff did not place before the court evidence demonstrating steps taken to mitigate the loss nor did it establish the period reasonably required to secure a new tenant for the premises. The Plaintiff did not also dispute the Defendant’s assertion. In the absence of such evidence and in the absence of a contractual notice period, a claim for the entire unexpired term cannot be sustained. 87.On the condition of the premises, the Plaintiff claims Kshs. 1,371,105/= as restoration costs, alleging that the Defendant left the premises in a dilapidated state. The Defendant disputes this, maintaining that it left the premises in a tenantable condition. This is because the Defendant operated motor vehicle repair business which required open air. 88.The evidence relied upon by the Plaintiff consists primarily of invoices which as admitted by PW1, do not specifically identify the particular godown to which the repairs relate and are not supported by receipts evidencing actual payment. There is also no independent inspection report or other corroborative evidence linking the alleged damage to the Defendant’s occupancy. In the absence of clear, specific and credible evidence, this Court finds that the Plaintiff has failed to prove this claim on a balance of probabilities. 89.In conclusion, I find that the Defendant breached the lease by vacating the premises prematurely and without proper notice or lawful justification. However, the Defendant’s liability is limited to proven rent arrears and in principle, compensatory damages subject to mitigation, but does not extend to the full rent for the unexpired lease term. The claim for restoration costs has not been proved and therefore fails. Whether the Plaintiff is entitled to the reliefs sought. 90.The Plaintiff seeks various reliefs namely; rent arrears, rent for the remainder of the lease term, restoration costs, general damages for breach of contract, interest, costs, and any other appropriate relief. 91.With regard to rent arrears, this Court has already found that there were outstanding sums due at the time the Defendant vacated the premises. However, the sum of Kshs. 1,142,090/= claimed by the Plaintiff is not fully supported by its own statement of account, which reflects a balance of Kshs. 215,490/= as at 31st July, 2018. Further, the inclusion of Kshs. 139,200/= as legal fees was not substantiated by evidence of either contractual agreement or proper notification to the Defendant. In the absence of proof that such charges formed part of the agreed obligations, the same is disallowed. Taking into account the Defendant’s admitted payment of Kshs. 100,000/= in February 2019, the Plaintiff is only entitled to the balance of the legitimate and proven rent arrears, subject to proper computation. This will address the Defendant’s claim of overpayment by Kshs.76,290/=. 92.As regards the claim for rent for the remainder of the lease period amounting to Kshs. 20,248,296/=, although this Court has found that the Defendant breached the lease by vacating prematurely, this head of claim is not sustainable in law. The proper remedy lies in compensatory damages subject to the duty to mitigate loss. As already observed, the Supreme Court in Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology underscored that it would be unreasonable and unconscionable to award rent for the entire unexpired lease term and affirmed that damages must be limited to losses reasonably incurred, taking into account mitigation. 93.In the present case, the Plaintiff did not place before the Court sufficient evidence demonstrating the steps taken to mitigate its loss, particularly any efforts to re-let the premises or the period reasonably required to secure a replacement tenant. While the burden of proving mitigation does not require perfection, a landlord is nevertheless expected to demonstrate reasonable diligence in minimizing loss. The starting point was when it allowed the Defendant to vacate the premises as facilitated by the Plaintiff’s caretaker and security personnel at the suit premises. This meant the premises were now available for the Plaintiff to commercialise. 94.That said, the Court must not leave a proven breach without an effective remedy. In exercising its discretion, and bearing in mind the nature of the premises as a commercial godown with specialized use, this Court is entitled to make a reasonable assessment of the period that would ordinarily be required to secure a new tenant. Talking into account the practical realities of the market for such premises, the disruption caused by the abrupt termination, the quarterly rent structure under the lease and the nature of business undertaken in the godown. I am satisfied that a period of one year would constitute a reasonable timeframe within which the Plaintiff ought to have mitigated its loss. I find that an award equivalent to one year’s rent represents a fair and proportionate measure of compensatory damages in the circumstances of this case. 95.Accordingly, while the claim for rent for the entire unexpired term is declined, the Plaintiff is entitled to damages equivalent to one year’s rent as compensation for the Defendant’s breach. 96.With respect to the claim for restoration costs of Kshs. 1,371,105/=, the law requires that special damages be specifically pleaded and strictly proved. Although the Plaintiff produced invoices in support of this claim, the evidentiary threshold fell short of the required standard. The invoices do not clearly identify the specific godown allegedly repaired and are not supported by receipts or other proof evidencing payment. In the absence of cogent and verifiable evidence linking the alleged repairs to the suit premises, this claim fails for want of proof. 97.On the claim for general damages for breach of contract, it is a well-established principle that such damages are not ordinarily recoverable in claims founded on breach of contract as such damages are, by their nature, quantifiable. The Plaintiff has not demonstrated any exceptional circumstances that would warrant departure from this principle. Accordingly, this head of claim is declined. Related to this, the Plaintiff’s claim for specific performance is unsustainable for not being founded on the pleadings and also for being sought concurrent with damages. Specific performance is granted where damages cannot issue and it did not readily come out what the Plaintiff expected the Defendant to perform. 98.On the prayer for interest, I find that interest shall accrue on the amount found due for rent arrears at court rates from the date of filing suit until payment in full. 99.With regard costs, the general rule under Section 27 of the Civil Procedure Act is that costs follow the event, unless the court for good reason orders otherwise. In the present case, the Plaintiff has succeeded only in part. In the circumstances, it is just and equitable that each party bears its own costs. 100.Accordingly, judgment is hereby entered in favour of the Plaintiff in the following terms:-a.The Defendant is liable to the Plaintiff only to the extent of proven rent arrears, if any, as may be due until 8th September, 2018, when the Defendant vacated the suit premises, subject to reconciliation and computation of payments between the parties;b.The claim for legal fees of Kshs. 139,200/= is disallowed and shall be excluded from the computation in (a) above;c.The claim for rent for the remainder of the lease term is hereby dismissed;d.The Plaintiff is awarded damages for breach of contract equivalent to one year’s rent;e.The claim for restoration costs is hereby dismissed.f.The claim for general damages for breach of contract is hereby dismissed.g.Interest on the sum awarded in (a) and (d) above shall accrue at court rates from the date of filing suit until payment in full.h.Each party to bear its costs of the suit. 101.Orders accordingly. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 4TH DAY OF JUNE, 2026RHODA RUTTOJUDGEIn the presence of;Court Assistant: WabwireMr. Kitwaiji holding brief for Ms. Nyabuto for PlaintiffMs. Kale for the Defendant