[2024] KEHC 16135 (KLR)

Gorsiya v Odula (Civil Appeal E738 of 2022) [2024] KEHC 16135 (KLR) (Civ) (13 December 2024) (Judgment)

Neutral citation: [2024] KEHC 16135 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E738 of 2022

REA Ougo, J

December 13, 2024

Between

Heena Gorsiya

Appellant

and

Jacqueline Odula

Respondent

(An appeal against the judgment of Hon. D.A Aswani Adjudicator delivered on 21st July 2022 in Nairobi Small Claims Court Claim No E 2216 of 2022)

Judgment

1. This appeal is from the judgment made by Hon. D.A. Aswani in the Small Claims Court. By way of background, the appellant on 8th February 2017, entered into a tenancy agreement with the respondent. However, the tenancy was terminated by a notice issued by the respondent on 21st January 2022.

2. The respondent claimed that the appellant had failed to adhere to clause 8 (xvi) of the tenancy agreement which stated that a penalty of Kshs 10,000/- would be applied if the appellant failed to pay rent within 5 days of the due date (5th of every month). According to the respondent from April 2021 to March 2022, the appellant made late rent payments and was therefore required to pay the respondent a penalty for late payment amounting to Kshs 120,000/-.

3. The respondent as per clause 7 of the contract contracted an agent to review the state of the premises and her agent assessed total repair costs at Kshs 347,350/-. The appellant used her deposit of Kshs 90,000/- in partial settlement of the repair costs leaving an outstanding amount of Kshs 257,350/-. The respondent in her claim sought judgment in the sum of Kshs 377,350/-.

4. The appellant in her response to the claim, denied owing any sums to the respondent. She averred that there existed no clause on penalties for late payment of rent and that she paid monthly rent on time.

5. Jackline Odula (Cw1) testified that the appellant was her tenant and she failed to pay rent on time from 2017 to 2022. She explained that she did not enforce the penalty for late payment during the COVID-19 period. The appellant failed to comply with clause 7. 7 and leave the premises in a satisfactory state. On cross-examination, she testified that the tenancy agreement ended on 10/02/2019. She testified that the contract was renewed but did not provide any copy of the renewed contract.

6. Terry Odula (Cw2) testified that she is a qualified architect. She produced a report she prepared after visiting the premises. On the day she visited the premises, the appellant’s mother and aunt were in the house. The caretaker was also present.

7. The appellant testified as Rw1 and adopted her written statement as her evidence in chief. She testified that in February of 2022 they had agreed with the respondent that the rent payable would be Kshs 50,000/-. She never signed any renewal for the contract and that no issue had been raised by the respondent during her tenancy. On 23/3/2022 they agreed to a joint assessment. They agreed to meet at 11:00 but Cw2 failed to show up. Cw2 showed up for the assessment late, at midday, after she had left. On cross examination. She testified that her contract expired in 2019. She admitted to late payments but maintained that she always paid her rent.

8. Ramesh Varsani (Rw1) testified that she is a quantity surveyor. On 21/3/2022 the appellant requested her to attend a joint assessment of the premises scheduled for 11:00 a.m. She availed herself at the scheduled time but neither the respondent or any architect was present. She informed Rw1 and left the premises.

9. The trial magistrate found that the parties entered into a tenancy agreement dated 08/02/2017 which provided for late penalties. Therefore, he found that penalties were due for 8 months amounting to Kshs 80,000/-. The court found that the appellant did not provide any technical evidence to dispute the evidence of Cw2. The court found that the report by Cw2 was sufficient proof and that the respondent was within her right to demand for Kshs 257,350/- for repairs. The trial court therefore entered judgment in favour of the respondent in the sum of Kshs 337,350/-.

10. The appellant dissatisfied with the judgment lodged his appeal dated 17/9/2022 raising the following grounds: 1. The trial adjudicator erred in law in finding in favour of the respondent on the basis of a singled sourced valuation.

2. The trial adjudicator erred in law in considering and/or using the valuation conducted by the respondent’s kin which is not objective and unfair while causing the appellant great prejudice.

11. The appellant submits that the report only shows the state of the house at the time the appellant was to vacate the premises but does not show its state prior to her occupation. In Saul Sewe Ochieng Nyamogo v Kijos Holding Limited [2018] eKLR the court held:“Having failed to tender evidence to show state of the premises prior to the occupation cannot be used to carry out repairs and deduct from the appellant’s deposit.”

12. There was no evidence to prove the condition of the house before occupation. Despite the parties consenting to a joint assessment, the respondent’s representative conducted the valuation without the appellant’s representative. The report was also based on the Joint Consent Guide published every two years but the said guide was not produced in court. It was submitted that the values contained in the valuation were inflated and the court was urged to set aside the subordinate court’s judgment based on the report.

13. The appellant submitted that the report was prepared by the respondent’s relative and therefore tainted with bias. The valuation ought to have been undertaken by an independent party to ensure that the same was actual and just.

14. The respondent in their submissions identified two issues:a.Whether the tenancy agreement provided for a penalty for late payment of rent;b.Whether the landlord is entitled to the costs of the repairs of the premises from the tenant.

15. On the first issue, the respondent supported the finding of the trial court that the respondent was entitled to penalty charges for late payment.

16. On the second issue, they submit that the appellant was under a duty to pay for repairs. To ascertain the repairs, the respondent engaged a qualified architect to prepare a report on the required repairs and the attendant cost. Before the occupation of the tenancy, the appellant had inspected the house and had confirmed that the house was in good condition. Therefore, the damages assessed was based on repairs required after her occupation. The appellant also confirmed in her cross examination that she neither compiled a separate report nor contracted an expert to determine the repairs needed. The expert’s report by the claimant thus remains unchallenged and there is no expert report contradicting it.

ANALYSIS AND DETERMINATION 17. This is a first and last appeal from the Small Claims Court. Section 38 of the Small Claims Court Act is clear that appeals to this Court are final and on points of law only. The section provides:“38. Appeals(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.(2)An appeal from any decision or order referred to in subsection (1) shall be final.”

18. In this appeal, the sole issue contested is the weight given to the valuation report. The appellant claimed that Cw2 was biased due to her being the respondent's sister; however, no evidence was presented to substantiate this allegation. Notably, this matter was not raised during the trial court when Cw1 was cross-examined. While it is true that Cw1 and Cw2 share the same last name, assuming a familial relationship based solely on this fact it would result in a serious miscarriage of justice.

19. It is not contested that the parties agreed to conduct a joint valuation. However, when Rw2 arrived at the premises the respondent’s expert had not arrived. She called the appellant and informed her of the situation. It is undisputed that the appellant's mother was present at the premises when Cw2 arrived. This position was confirmed by Rw1.

20. Cw2 testified that she relied on the Joint Building Consent Guide, which is published every two years, to come up with repair costs. She explained that the report is open to every professional in the industry. Upon re-examination, she testified that it was unnecessary to tender the Joint Building Consent Guide as an exhibit as it was used only for reference.

21. The appellant in this appeal is challenging the valuation report by the respondent. However, expert evidence can only be contested by another expert. The Court of Appeal in the case of Criticos versus National Bank of Kenya Limited (as the successor in Business to Kenya National Capital Corporation Limited “KENYAC”) & another (Civil Appeal 80 of 2017) [2022] KECA 541 (KLR) (28 April 2022) (Judgment), where the court held:“As properly held in Stephen Kinini Wang'ondu (supra), expert evidence can only be challenged by another expert. We also associate ourselves with the criteria for assessing an expert’s evidence as outlined in the same decision, rehashed herein below for emphasis. "A further criteria for assessing an expert’s evidence focuses on the quality of the expert’s reasoning. A court should examine each expert’s testimony in terms of its rationality and internal consistency in relation to all the evidence presented. In Routestone Ltd. v. Minories Finance Ltd. and Another [Same v. Bird and others [1997] B.C.C. 180] Jacob J. observed that what really mattered in most cases was the reasons given for an expert’s opinion, noting that a well-constructed expert report containing opinion evidence sets out both the opinion and the reasons for it. The judge pithily commented “[i]f the reasons stand up the opinion does, if not, not.”

22. The Supreme Court in Attorney General vs Zinj Ltd (2021) eKLR, held that:“30. Having determined that the respondent’s right to property had been violated by the Government, the trial court, and later the appellate court, made orders for compensation in favour of the respondent. Both courts granted special and general damages. As we have arrived at a similar conclusion, we see no reason to interfere with the findings of the two superior courts in this regard. We take note of the appellant’s submission to the effect that in arriving at the quantum of special damages, the trial court placed reliance upon a Valuation Report by a private valuer.Such Report, in the view of the appellant, was not only unreliable, but could very likely have been tailored to support the respondent’s claim. However, in answer to this court’s question as to whether, the appellant had tabled in court, a Government Valuation Report to counter the contents of the impugned one, counsel for the appellant stated that no such Report was ever tabled at the trial court. The main basis upon which special damages can be granted for the deprivation of property, is the market value of the said property. In case of general damages, a court of law exercises discretion guided by the circumstances of each case. In granting special damages, the trial judge was guided by the Valuation Report tabled by the respondent. In the absence of a contrary report on record, we have no basis upon which to interfere with the award. Even if there had been one such other report, our jurisdiction to interfere would still have been largely circumscribed, unless the award had clearly ignored the fundamental principles of valuation as demonstrated by the counter-report.”

23. The appellant did not counter the respondent’s report by presenting its report. Cw2 provided a clear explanation of how the figures in the report were determined. Her testimony remained unshaken during cross-examination.

24. In the end, I find that the appeal is without merit and the same is dismissed. The respondent shall have the costs of the appeal.

DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 13THDAY OF DECEMBER 2024. R.E. OUGOJUDGEIn the presence of:Mr. Lutukai h/b Mr. Madowo For the AppellantMiss Some For the RespondentKizito -C/A