https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10176

Moriasi v Muya t/a Thanjes Investment Company Ltd & another (Civil Appeal E227 of 2024) [2026] KEHC 10176 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10176 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E227 of 2024 E Ominde, J July 9, 2026 Between Geoffrey Moriasi Appellant and Mary Muya t/a Thanjes Investment Company Limited 1st Respondent Thanjes Investment Company Limited 2nd Respondent (Being an Appeal from the decision of the Senior Principal Magistrate at Eldoret (the Honourable R. Odenyo Senior Principal Magistrate) dated the 9th day of October, 2024 in Chief Magistrate’s Court Civil Case No. 497 of 2015.) Judgment 1.By way of an Amended Further Plaint dated 25th October 2021, the Appellant sought the following orders in the trial court;aa)An Order for release of the Plaintiff’s tools of trade, items and/or properties locked up in business premises room Number 17 on 26th March, 2017.aaa)General damages for breach of contract and illegal closure of the premises and/or distressb)The Defendants be ordered to pay the Plaintiff for loss of user from 26th March /2015 till release of the goods.bb)The Defendant be ordered to replace the plaintiffs expired items and non-recovered items.c)Costs of this suit together with interest thereon.d)Any other relief that this Honourable Court may deem fit to grant. 2.In that suit before the trial court, the Appellant, then the plaintiff, pleaded that on 5th January, 2012 he entered into a lease agreement with the 2nd Defendant, the owner of property Title Number Eldoret Municipality Block 7/24 and the Plaintiff was allocated Room Number17 on the Defendant’s aforesaid premises. The lease was to run for a term of five (5) years and three (3) months commencing on 5th January 2012 and terminating on 4th April 2017 but the 1st Defendant prematurely terminated the lease by locking the Plaintiff’s tools of trade. 3.He stated that he had adhered to the terms of the said lease agreement and paid rent diligently and on its due date until 26th March, 2015 when the Defendant illegally closed up his premises, in breach of the agreement. He denied being in breach of the agreement and particularised the breach on the part of the Respondents. 4.The defendants on their part filed a Further Amended Statement of Defence & Counterclaim dated 18th October 2017. They denied the contents of the Plaint and urged that the Plaintiff breached the lease agreement. They particularised the breach of contract and pleaded that the plaintiff’s breach was by failing to pay rent of Kshs. 123,000/. which they claim. 5.In the counterclaim, the Respondents averred that the plaintiff abandoned the suit premises after accumulating rent arrears which they claimed as follows: -a.Rent arrears before April, 2015 — Kshs. 123,000/=b.Rent arrears from April — November, 2015 - Kshs. 104,000/=c.Storage of items at 500 per day from December, 2015 that is Kshs. 500/= x 1771 = Kshs. 885,500/=d.Interest on (a) & (b) above from December, 2015 6.They prayed that the suit against them be dismissed with costs and the plaintiff be ordered to pay all the outstanding rent as per counterclaim together with storage charges. The Appellant then filed a reply to the further amended defence & defence to counterclaim denying breach of the agreement and further, averred that the Respondents chose to store up the plaintiff’s items despite the court order being issued for their release. He urged that the defendants having breached the terms of the agreement cannot compel the Plaintiff into a specific performance thereof. He prayed for judgement in terms of the further amended plaint and dismissal of the Defendants further amended defence and counterclaim with costs. Hearing at the trial court 7.PW1 was Geoffrey Moriasi. He testified that he is a hairdresser and the 1st defendant was his landlady at the place he was doing business from about 2012 and 2015. He adopted his witness statement as evidence in chief and stated that he defendant breached the lease agreement by7 locking up the premises when he had no arrears of rentHe produced the agreement dated 5th January 2012 as exhibit 1 and the receipts for rent as exhibits 2a-e. 8.The witness stated that he wrote a letter to the defendant dated 25th March 2015 which he produced as exhibit 3 seeking that the premises be re-opened to which the defendant replied. He then replied vide a letter dated 7th April 2015 which he produced as exhibit 4. He also produced business records covering the period 2011 to February 2015 which were marked as MFI-5. He also produced an inventory of the saloon dated 23rd June 2015 as exhibit 6. 9.During Cross examination, the witness reiterated the date of the lease. He stated that the rent was to be increased after the initial two years. That the same was to be paid quarterly in advance. He conceded that he had not produced all the receipts that he had been issued with. He also conceded that in some receipts he had paid less money than was due. Further, he agreed that the inventory did not show the prices of the items and also that he had not produced ant photo of the items. 10.He conceded that the items were kept in the store until the date they were released to him and further that the respondent would not have locked the premises if he did not owe rent. He admitted that when the shop was being closed, he had not paid rent for that month of Marrch 2015 and the arrears therefore amounted to Ks. 15,500/- only. That his tools of trade were only released after he obtained a court order. 11.DW1 was the defendant Mary Mugeshi Muya. She stated that she was a director of the company together with Virginia Muya, Alice Muya, Pharis Muya and one more. She adopted her witness statement dated 24th August 2022 as evidence in chief and stated that the 2nd defendant is the manager in the company which owns Muya House where the plaintiff was a tenant. That whenever the plaintiff paid rent he would be issued with receipts. 12.She produced a bundle of receipts dated 3/6/2014 of Kshs 63,000/-, 11/2/2013 of Kshs 42,000/-, 7/4/2014 of Kshs 33,000/-, others 30/9/2019, 9/2/2015, 30/11/14, 12/8/14, 18/7/14, 12/6/13, 7/3/2012 for Kshs 31,500/-, Kshs 39,000/-, Kshs 26,000/-, Kshs 13,000/-, Kshs 13,000/-, Kshs 31,500/=- and Kshs 47,000/= totalling to Kshs 278.500/ =. the bundle was marked as D exhibit 1-10. She also produced a copy of the lease agreement which was marked as D exhibit 11. She stated that the lease was for 5 year 3 months. In the first two years the rent was Kshs 10,300.00/- per month. The 3rd, 4th and 5th years, the rent was increased to Kshs 13,125/- per month. 13.She denied locking the Plaintiffs premises as claimed and further stated that she had employed a caretaker by the name Mwangi to handle matters concerning rent for the premises but he had since left her employment. She stated that the Plaintiff vacated on 26th March 2015 and had arrears of rent. In the last two years he was to have paid a total rent of Kshs 252,000.00/- and for the remainder of the period that he stayed he was supposed to have paid Kshs 195,875.00/- bringing the total to Ks. 447,875/- That by the time the plaintiff was vacating the premises, he was owing Kshs 169,089/- and it is this amount that she has demanded in their counter claim. 14.She stated that Mwangi took the plaintiffs goods and placed them in the store and therefore storage charges are also due and owing. That the plaintiff was called asked to come with his receipts, but he never came and when he finally came, he only took some goods and left others. 15.In cross examination, she stated that they issued the plaintiff with a notice which he refused to sign. That there was a rent book for the premises which he also refused to sign. She denied that any of his belongings got lost and stated that the 2nd defendant gave Mwangi authority to release the plaintiff’s belongings to him. She stated that she did not remember if the plaintiff had paid rent by 9th February 2015 or the last date that he paid rent. That the receipt for the money paid on 9th February 2015 must have been covering previous months and that from her receipts the plaintiff had rent arrears. 16.The defence closed its case and the parties were directed to file written submissions. Upon considering the submissions and the testimonies of the parties, the trial court dismissed the Plaintiffs’ case and entered judgment in favour of the Defendant as per the counterclaim in the following terms;a.Rent arrears – Kshs. 169,025/-b.Storage charges – Kshs 885,500c.Costs of the suitd.Interest on the above on court rates 17.Being dissatisfied with the decision of the trial court, the Appellant instituted the present appeal vide a Memorandum of Appeal dated 8th October 2024 premised on the following grounds;1.That the learned Trial Magistrate erred in fact and in law by dismissing the appellant’s case.2.That the Learned Trial Magistrate erred in law by failing to consider the fact that the Appellant shop premises were illegally and unlawfully locked up.3.That the learned Trial Magistrate erred in law by wrongly applying the principles of breach of contract.4.That the learned trial Judge erred in law and fact in failing to analyze and consider the principles in termination of tenancy vis~a~vis the agreement of the parties.5.That the learned trial Judge erred in law and fact in failing to consider, evaluate and take into account the oral and documentary evidence and submissions of the Appellant hence an erroneous judgment in the circumstances.6.That the learned trial Judge erred in law and fact in basing its decision on wrong principles and facts thereby entering judgment in favour of the Respondent without any legal basis and/or any explanation of the case.7.That the learned trial judge erred in law and fact as he misapplied the facts and circumstances revolving in the matter hence the erroneous Judgment. Appellants’ Submissions 18.Counsel submitted that there was breach of tenancy agreement necessitating the Respondents to prematurely terminate his lease by locking up his shop. He quoted page 2 paragraph 3 of the tenancy agreement which stated that,“The Landlord shall have the right to sue for and/or distress for rent should the same be in arrears for two months or more”. 19.He urged that the Respondent on believing that the Appellant was in rent arrears did not adhere to tenets of the agreement. Further, that the 1st Respondent in her testimony clearly indicated that she had a caretaker who was dealing with Appellant. He pointed out that on cross examination she clearly stated that, she could not remember if Appellant had paid rent on 9th February 2015 and could not remember last date plaintiff had paid rent. The Respondents did not call the caretaker who was dealing with the Appellant to confirm that the Appellant had rent arrears, The Appellant clearly stated he had paid rent and showed a receipt for 9th February 2015. Assuming that there was rent arrears the proper thing for Respondent was to sue and/or distress. 20.Counsel contended that the magistrate erred in failing to consider the fact that the Appellant shop premises was illegally and unlawfully locked up. The Respondent did not deny closure of the shop and there was no legal justification for the closure. He urged that rent arrears was not a legal basis for closure and further, cited Section 4 (2) of the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act Cap 301 which states; A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form. 21.He maintained that the illegal closure necessitated the Appellant loss of business. That the principal remedy under common law for breach of contract is an award of damages, the purpose of damages being to compensate the injured party for the loss suffered as a result of breach. He stated that the court erred in alluding that general damages are not payable and, that the Respondents illegal action had subjected the Appellant non-operational from 26th March 2015 to 31st August 2017 when an order was issued for release of the goods. That the Appellant brought evidence to show his work and income generated and therefore, was entitled to damages. 22.He cited Anson’s Law of Contract, 28th Edition at pg. 589 and 590 and the case of Dormakaba Ltd v Architectural Supplies Kenya Ltd (Civil suit 136 of 2020) (2021) KEHC 210 (KLR) and urged that had the Respondent followed the right procedure in asking for arrears if any and/or giving the Appellant notice to terminate tenancy the Appellant could have not suffered. That the Appellant proved loss due to the Respondent action and the trial magistrate erred in wrongly applying the principles of breach of contract thus denying Appellant damages. 23.Counsel cited Gusit Mwalimu Investment Co. Ltd vs Muahimu Hotel Kisii Ltd, [1996] eKLR on the right of a landlord to re-entry and Mattarella Limited vs Michael Bell & Another (2018) eKLR, urging that the Appellant shop was illegally closed by Respondent on March, 2015. The Appellant could not pay rent from then onwards. That the court erred by holding that the Respondent was entitled to rent from April 2025 onwards. The Respondent claim for rent was to be proved which was not since no account records were brought before court to verify. 24.Whereas in the Respondent pleadings they sought for rent arrears before April, 2015 a sum of Kshs. 123,000/=. In giving evidence, the Respondent stated that the Appellant had rent arrears to the tune of Kshs. 169,025/=, the court cannot fill the gap by granting amount not proved. Further, Counsel submitted that the Respondent did not prove that they are entitled to storage charges and the Appellant did not ask them to store his items. From the Respondent’s evidence one Mwangi took the Appellants goods and placed them in the store. 25.There was no proof that storage charges were to be paid for the goods. In any event had the Respondent done what was right by legally levying distress, an auctioneer was one to be paid for storage. To legally levy distress for rent the Respondents would have engaged a licensed auctioneer to seize the Appellant’s goods in case there was any arrears. The auctioneer would have provided notice of the distress to the Appellant and if the rent arrears are not paid, the goods are sold to recover the rent. He urged that the entire process is governed by the Distress for Rent Act (Cap 293), a procedure the Respondents failed to adhere to. 26.Counsel urged that the Appellant duly proved his claim and the judgment of the trial court be set aside and in lieu thereof judgment be entered for Appellant in terms of general damages for breach of contract and illegal closure of the premises and loss of user. Respondents’ submissions 27.Learned Counsel for the respondent filed submissions dated 28th October 2025 where he urged that as to whether there was breach of contract, the Appellant admitted in cross examination that his premises could not have been locked if there was no rent dispute. The Appellant did not produce all receipts to show that indeed he was not in arrears and more specifically at page 150 of the record on cross examination he admitted in reference to the lease agreement that;‘The rent was to be paid quarterly in advance. It is true that in response by the defendant through her lawyer she was demanding some money from me....in some receipts I paid less than what was due. ” 28.He urged that from the foregoing there is no doubt that there was breach of contract by the Appellant himself. As to the available relief in the premises, it is trite law that a party cannot rely on his wrong to advance a cause of action. This is derived from the Latin maxim ex turpi causa non oritur action which means that from a dishonourable cause, an action does not arise. Since the Appellant admitted unequivocally that he did not pay rent as agreed, he is estopped from denying that he was in breach. 29.Counsel urged that regard should be had to Section 120 of the Evidence Act Cap 80 Laws of Kenya and the case of Cheall -vs- Association of Professional Executive Clerical and Computer Staff (19831 1 ALL. Further, that even if there was alleged breach which is not the case, the Appellant was not entitled to damages since damages are not awardable in breach of contract. He cited the case of Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] KECA 312 KLR 1 as well. 30.Counsel urged that as regards to expired and non-recovered items, it is also curious to note that the Appellant stated that his shop was closed in March, 2015 and inventory was done in May, 2015 which doesn’t make sense and begs the question on how the Appellant came up with the inventory if the shop was locked. Additionally, that it is not in dispute that the Respondent did not have any input in the preparation of inventory. It is also not clear when it was prepared and the items contained therein could not been verified independently. 31.That in view of the foregoing, the Appellant did not discharge the burden of proof and award could be made under this head. Counsel cited the case of Kenya Trucks and Tractors Limited v County Government of Mombasa Civil Suit E001 of 20201 [2025] KEHC 2594 (KLR) 124 March 2023 in support of these submissions. 32.Counsel submitted that as regards to loss of user, it is trite law that parties are bound by their pleadings and evidence that is not in tandem with pleadings goes to no issue. He cited the decision of the Court of Appeal in Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR and submitted that in the instant case, the Appellant never pleaded how much he used to make from his business to warrant this prayer. 33.On their part, the Respondents were able to prove rent arrears of Kshs. 169,025/= which should be upheld since from the onset there was no dispute with regards to rent arrears as the Appellant conceded to the same in cross-examination. For storage charges, the Respondents pleaded in their counterclaim the number of days are and the charges per day when the appellant’s items were in storage. By the time the items were released to the Appellant, the storage charges had accumulated to Kshs. 885,500/= which was rightly awarded by the Trial court and ought to be upheld. 34.In conclusion, Counsel urged that the Appellant has not raised any issue to warrant interference with the award of the trial court as he never went to court with clean hands and he should not be allowed to benefit from his own wrong having admitted he was not paying rent as required. Counsel prayed the court dismiss the Appeal with costs. Analysis & Determination 35.Having considered the grounds of appeal as well as the submissions of the parties, it is my considered opinion that the following issues arise for determination;i.Whether the trial court erred in dismissing the Appellants’ caseii.Whether the trial court erred in award entering judgment in favour of the Respondents 36.The duty of a first appellate court is as set out in the case of Williamson Diamonds Ltd and another v Brown [1970] EA1 wherein the court held that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 37.Further, in PIL Kenya Limited v Oppong [2009] KLR 442, it was held that:“It is the duty…of a first appellate court to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanor and giving allowance for that”. 38.Before proceeding to a detailed analysis, the court needs to point out that contrary to the submissions by Counsel for the Appellant, by dint of the fact that the tenancy the subject matter of this suit was for a period of 5 years and 3 months, the same was not a controlled tenancy. This is because controlled tenancies under the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) controlled tenancies must be those that are for a period not exceeding 5 years. It follows therefore that any submissions premised on this assumption is not only misconceived but is also misleading and the court will therefore not make any reference to them. 39.On the issue of whether the trial court erred in dismissing the Appellants’ case, the dispute is over the alleged illegal closure of Applicant’s business premises by the Respondent for which he sought for damages for breach of contract and loss of user and the release of his property that had been locked up by the Respondent. In his testimony, the Appellant conceded that he had arrears and admitted in court that the goods were eventually released to him following the court’s intervention. It t was on this basis that the trial court dismissed his case. 40.From the documents filed in support of the Appellants claim the agreed rent was Ks. 10, 500 /- payable monthly with effect from 5th January 2012 when the tenancy commenced, and during the remainder of the term of the lease increase to Ks. 13,500/- payable monthly and then quarterly with effect from the first day of the 3rd year to the end of the tenancy. 41.To demonstrate that he paid the rent as and when it fell due, the Appellant produced receipts which mirrored the receipts produced by the Respondent also in her documents as follows;January – March 2013 – 47,000 (Including 2 Months’ Deposit) (paid on 07/03/2013)March – May 2013 – 31,500 (paid on 30/09/2013)March to May 2013 – 31,500 (paid on 12/06/2013)November to February 2013 – 42,000 (paid on 11/02/2013)January to May – 2014 – Kshs 63,000 (paid on 03/06/2014)January to March 2014 – Kshs. 33,000 (paid on 07/04/2014)July 2014 – 13,000/- (paid on 18/07/2014)August 2014 – 13,000 (paid on 12/08/2014)October – November 2014 – Kshs. 26,000 (paid on 30/11/2014)November 2014 to February 2015 – 39,000 (paid on 09/02/2015)Total = 328,000 (less 2 months’ deposit) 42.The Respondent in her counterclaim sought for a sum of Ks. 123,000/- as due and owing in rent arrears. It is not clear however how this amount of Kshs. 123,000/- was arrived at by the said Respondent. Further, the court, without any given basis in the impugned judgement awarded the Respondent Ks. 169,000/- and it is therefore not clear how this amount was also arrived at by the court. 43.Based on the above figures which are in concurrence as between the documents produced by the parties, the total rent due to the Respondent as at March of 2015 when the premises were locked was Ks. 10,500/- x 12 x 2 = 252,000 and this added to the increment thereafter at 13,125 x 3 = 39,375 bringing the total to Ks. 291,375/-. The calculation at paragraph 41) indicates that the Appellant as at this point in time had made payments totalling Ks. 328,000 (less 2 months’ deposit). 45.In the circumstances, it is clear that the Appellant was not in arrears of rent as alleged and in my assessment, the trial court erred in finding that the Appellant was in arrears of rent thereby dismissing the Appellants’ case for reasons that he had no arrears. I further note that the court in the impugned judgement did not at all assess the evidence but simply relied on the evidence in cross examination as conclusive proof. In the same vein, the court did not give the same consideration to the defendants’ testimony that she did not remember the last time the Plaintiff had paid rent. 46.On the issue of whether there was breach of contract, which according to the Appellant, accrues from his assertion that the closing of his business premises was illegal because he was not in arrears of rent. the Lease agreement that was tendered in evidence provides that;"Should any party wish to terminate the tenancy before the expiry of the tenancy period then they ought to give the other party three months’ notice and in default pay one month rent in lieu of such notice" 47.The Respondent claimed that the Appellant abandoned the premises after arrears accumulated while the Appellant claims that the premises was illegally locked by the Respondent on March 2015. In spite of the assertion of the abandonment of the premises by the Appellant, the court notes that in her evidence she testified that she is the one who directed her caretaker to lock the premises over alleged rent arrears. The court therefore finds that it is the Respondent did in fact lock the Appellant’s premises. It is therefore not the Appellant who abandoned the premises as alleged. This act by the Respondent in this regard was illegal. 48.On whether the Plaintiff was entitled to general damages for breach of contract by the act of the Respondent locking his premises when no arrears was owed which the court agrees with him was illegal, the court however finds that because the lease agreement upon which the tenancy is premised does not have a clause on default of rent and/or issuance of notices in that regard, the court is unable to find in favour of the Appellant that the contract between the parties was breached. For this reason, there are no general damages due. 49.On the prayer for loss of user, Denning J. in Miller vs 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 the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a 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.” 50.In the case of Bonhan Carter v Hyde Park Hotel Limited [1948] 64 TLR 177), the court observed that:“It is trite law that the Plaintiff must understand that if they bring actions for damages it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.” 51.In the instant case, this prayer is simply not based on anything save for the assertion that the Appellant was a hairdresser operating a salon. It has been therefore left to court to determine for itself what type of salon it was, and what its basics aspects were and what type of clientele frequented it etc. for the court to surmise for itself what the loss of user could be or ought to be. Clearly then, the Appellant has not at all made any attempt to prove this aspect of his pleadings. Accordingly, the same must fail. 52.Having herein found that the Respondent’s act of locking up the Appellant’s premises and taking away his tools of trade for storage was illegal, the court cannot again allow that the said Respondent benefits from her illegal act by awarding her storage charges that she claims in her counter claim. Given this finding by the court on this issue of storage charges, I am of the further finding that the trial court erred in awarding the Respondent the amount of Ks. 885, 500/- under this head. The said finding is therefore now hereby set aside in its entirety. 53.Lastly, based on my re-evaluation, re-consideration and analysis of the evidence and my conclusions therein reached, I am satisfied, and I now hereby find that the Learned Magistrate erred in finding in favour of the Respondent on rent arrears owed as assessed at Ks. 169,000/, and also on the storage charges assessed at Ks. 885,500/-. In the circumstances, I find mat the Appeal filed by the Appellant has merit and the same is now hereby is allowed. Consequently, the impugned judgement of the trial court, together with all the consequential orders thereto, is now hereby set aside in its entirety. 54.Further, I also find that the entirety of the Respondent’s counterclaim lacks merit, and the same is now hereby dismissed in its entirety. On the prayers sought by the Appellant, the court notes that the prayer that the Plaintiff’s tools of trade, items and/or properties locked up in business premises room Number 17 on 26th March, 2017 be released to him has been overtaken by events for reasons that the said items were already released on the strength of an order of the court. This prayer is therefore dismissed. 55.The prayer for General damages for breach of contract and illegal closure of the premises and/or distress, the court finds that the same has not been proved to the required degree. The same is accordingly dismissed. The prayer for loss of user and the prayer that the defendant now Respondent be ordered to replace the plaintiffs expired items and non-recovered items have both not been proved at all and both are accordingly dismissed 56.The court awards the Appellant the costs of the Appeal together with interest thereon at court rates. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 9TH JULY 2026.E. OMINDEJUDGE