https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3759

Maina v Gatuguta & 2 others (Environment and Land Appeal E047 of 2024) [2026] KEELC 3759 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3759 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E047 of 2024 EK Wabwoto, J June 18, 2026 (Formerly Misc. Application No. E047 of 2023) Between James Munga Maina Appellant and Josephine Wanjiku Gatuguta 1st Respondent Hannah Waitherero Gatuguta 2nd Respondent Petfriend Auctioneers 3rd Respondent (Being an appeal from the judgment of Hon. A. Muma, Ag. Chairman/Member, of the Business Premises Rent Tribunal at Nairobi delivered on 27th September 2023 in Tribunal Case No. E437 of 2023: James Munga Maina v Josephine Wanjiku Gatuguta & 2 Others Tribunal Case E437 of 2023 ) Judgment Introduction 1.This is an appeal from the judgment of the Business Premises Rent Tribunal at Nairobi (Hon. A. Muma, Ag. Chairman/Member) delivered on 27th September 2023 in Tribunal Case No. E437 of 2023. By that judgment the Tribunal partially allowed the tenant’s application dated 28th April 2023, found the tenant to be in rent arrears of Kshs. 398,000.00, directed that the said sum be defrayed within four months in monthly installments of Kshs. 100,000.00, and ordered that the tenant continue to pay rent at the rate of Kshs. 44,000.00 per month, in default of which the landlord would be at liberty to levy distress and to evict. 2.The Appellant, James Munga Maina, was the tenant and applicant before the Tribunal. The 1st and 2nd Respondents, Josephine Wanjiku Gatuguta and Hannah Waitherero Gatuguta, were the landlords, being beneficiaries of the Estate of the late Francis Gatuguta Gichuhi, the proprietor of the suit premises. The 3rd Respondent, Petfriend Auctioneers, is the auctioneering firm instructed by the 1st and 2nd Respondents to proclaim against the tenant. The suit premises are situate upon the parcel known as Muguga/Gitaru/766. 3.Being dissatisfied with that decision, the Appellant preferred this appeal by a Memorandum of Appeal dated 7th November 2024. Background 4.The genesis of the dispute is a tenancy under which the Appellant occupied business premises on Muguga/Gitaru/766. The parties are at variance as to several of the terms governing the tenancy. It is, however, common ground that the parties at some point entered into an arrangement under which the Appellant carried out renovations to the premises, and that the cost of those renovations was to be recouped by the Appellant through a reduction of the rent otherwise payable. 5.According to the Appellant, the monthly rent of Kshs. 44,000.00 was varied so that he would pay Kshs. 22,000.00 in cash while the balance of Kshs. 22,000.00 would each month be set off against renovation expenditure of Kshs. 762,000.00 which he had incurred. He further contends that, by an agreement dated 18th May 2020 occasioned by the Covid-19 pandemic and the attendant Government restrictions, the rent was further reduced during the pandemic, that he undertook roof repairs at a cost of Kshs. 221,500.00, and that ordinary rent was only to resume in August 2023. 6.The Respondents dispute that account. They contend that the lease dated 22nd November 2017 relied upon by the Appellant is a forgery, a matter which they say has been confirmed by the Directorate of Criminal Investigations and is presently before the Office of the Director of Public Prosecutions. They maintain that the Appellant persistently defaulted in payment of rent, that he ignored repeated demands, that the roof repair costs were for his own account, and that ordinary rent fell due much earlier than the Appellant asserts. 7.By a Notice to Terminate Tenancy dated 17th April 2023, the landlord sought to terminate the tenancy on the ground that the Appellant had defaulted in payment of rent in the sum of Kshs. 703,700.00. In response, the Appellant filed a Reference dated 2nd May 2023 and a Notice of Motion dated 28th April 2023 under section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, seeking to restrain the landlord from evicting him. The landlord filed a Replying Affidavit dated 4th July 2023 seeking to enforce the notice, and the Appellant filed a Further Affidavit dated 12th July 2023. 8.By consent of the parties, recorded in the proceedings of the Tribunal, the Reference and the application were disposed of by way of written submissions. Both parties filed their respective submissions, and the Tribunal delivered the impugned judgment on 27th September 2023. The decision of the tribunal 9.The Tribunal framed two issues for determination, namely (a) whether the termination notice issued by the landlord and the reasons advanced were valid; and (b) whether the tenant was in arrears, and if so, in what sum. 10.On the first issue, the Tribunal observed that the termination notice dated 17th April 2023 had not been produced before it, that it was therefore unable to ascertain when the notice was to take effect, and that it could not establish the notice’s validity by reference to the period. It restated the requirements of sections 4(2) and 4(4) of Cap. 301, and the holding in Manaver N. Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994, to the effect that a notice terminating a controlled tenancy must be in the prescribed form, must specify the ground relied upon, and must not take effect earlier than two months from its receipt by the tenant. 11.On the second issue, the Tribunal noted that the cheques and M-Pesa statements annexed by the tenant were “scanty” and did not show the full payments for the periods claimed, and that the landlord had “narrated the arrears owed but ha[d] not provided any statement to show the position.” It nonetheless proceeded, at paragraph 29 of the judgment, to compute the arrears. That computation combined an assumed Covid-period balance of Kshs. 258,000.00 with a figure of Kshs. 140,000.00 said to represent sums “recovered in excess” of the renovation cost of Kshs. 762,000.00, arriving at a total of Kshs. 398,000.00. At paragraph 30 the Tribunal recorded that it had “mistakenly erred in the above math calculation” when the ruling was read out, an error which “came to [its] attention after,” and which it had “since amended.” 12.The Tribunal accordingly ordered that the tenant’s application be partially allowed; that the tenant defray the arrears of Kshs. 398,000.00 within four months in installments of Kshs. 100,000.00 per month; that the tenant continue to pay rent at the rate of Kshs. 44,000.00 as and when it fell due, failing which the landlord would be at liberty to distress for rent and to evict; that the Reference be settled on similar terms; and that there be no order as to costs. The memorandum of appeal 13.The Memorandum of Appeal dated 7th November 2024 advances five grounds, which may be summarised thus: that the learned member of the Tribunal erred in law and in fact by:(i)failing to accord the Appellant an opportunity to be heard contrary to the rules of natural justice before delivering the impugned judgment;(ii)finding that the Appellant was indebted to the Respondents;(iii)finding that the Appellant was required to pay rent in the sum of Kshs. 22,000.00 during the period May 2020 to December 2022 despite evidence to the contrary;(iv)failing to consider material evidence placed before the Tribunal, thereby occasioning a miscarriage of justice; and(v)failing to consider the Appellant’s Further Affidavit dated 12th July 2023, and thereby arriving at an erroneous decision. 14.The Appellant prays that the appeal be allowed and the impugned judgment set aside and substituted with a judgment in his favour; in the alternative, that the suit be remitted for hearing afresh before a differently constituted Tribunal; and that he be awarded the costs of the appeal and of the proceedings before the Tribunal. Submissions The Appellant’s submissions 15.The appeal was canvassed by way of written submissions. M/s Kuria Muchoki & Co. Advocates, for the Appellant, developed the grounds of appeal. It was urged that the Tribunal violated the Appellant’s right to a fair hearing under Article 50(1) of the Constitution by failing to consider the Further Affidavit dated 12th July 2023 and other material documents. On the question of indebtedness, the Appellant set out a detailed reconciliation across three periods, being the pre-Covid period (22nd November 2017 to 18th May 2020), the Covid period (18th May 2020 to November 2021), and the post-Covid period (December 2021 to August 2023), and contended that, properly computed, any arrears were capped at Kshs. 180,000.00, and that on a full reckoning, once the renovation expenditure of Kshs. 762,000.00 and the roof repairs of Kshs. 221,500.00 were taken into account, it was the Respondents who were indebted to him. He prayed that the appeal be allowed, that any arrears be capped accordingly, that the seizure of his property be declared unlawful, and that he be granted restitution of any excess realised on a sale, together with costs. The Respondents’ submissions 16.M/s Njathi & Co. Advocates, for the Respondents, opposed the appeal. They submitted that the Appellant had been fully accorded a hearing: the parties had by consent elected to proceed by written submissions; both had filed; and paragraph 27 of the impugned judgment demonstrated that the Further Affidavit had been considered, the Tribunal having expressly noted the Appellant’s contention that during the Covid-19 period (May 2020 to November 2021) his business was not operating and no money was recovered. On the merits, they reiterated that the 2017 lease was a forgery confirmed by the Directorate of Criminal Investigations and now before the Office of the Director of Public Prosecutions; that the Appellant had paid only a fraction of the sums due under the renovation arrangement; that the roof repairs were for the Appellant’s own account; and that the Appellant’s assertion that ordinary rent resumed only in August 2023 was unexplained. They urged the court to dismiss the appeal and to uphold the decision of the Tribunal in its entirety. Issues for determination 17.Having considered the Memorandum of Appeal, the record of appeal and the rival submissions, the issues that fall for determination in this appeal are:-i.Whether the Appellant was denied a fair hearing by the Tribunal;ii.Whether the Tribunal’s finding that the Appellant was indebted to the Respondents, and its computation of the arrears at Kshs. 398,000.00, can be sustained;iii.Whether the orders made by the Tribunal, in particular the order authorising distress and eviction, were justified upon the findings made; andiv.What relief, and what order as to costs, are appropriate. Analysis and determination (a) The nature of the appeal and the duty of this court 18.This being a first appeal, this court is under a duty to reconsider and to re-evaluate the entire evidence on record, to subject it to a fresh and exhaustive scrutiny, and to arrive at its own independent conclusions, while bearing in mind that, unlike the Tribunal, it has neither seen nor heard the parties. The principle is well settled: see Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424, restated in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. Where, however, the decision turns upon the exercise of a discretion, this court will not interfere merely because it might itself have exercised the discretion differently, but only where the Tribunal misdirected itself in law, misapprehended the facts, took into account irrelevant matters or omitted relevant ones, or where the decision is plainly wrong: see Mbogo & Another v Shah [1968] EA 93. 19.The appeal is brought from a decision of the Business Premises Rent Tribunal, a specialised statutory tribunal established under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, a right of appeal being conferred by section 15 of that Act. The appeal having been placed before this court and prosecuted by both parties without objection to its jurisdiction, and the dispute concerning as it does the occupation of and dealings in premises, I am satisfied that the court is properly seised of the matter and I proceed to determine it on the merits. (b) Whether the Appellant was denied a fair hearing 20.The first, fourth and fifth grounds may conveniently be taken together, for they raise in substance a single complaint: that the Tribunal denied the Appellant a fair hearing by failing to consider his Further Affidavit dated 12th July 2023 and other material before it. 21.The right to a fair hearing is guaranteed by Article 50(1) of the Constitution and, in the context of administrative and quasi-judicial action, by Article 47. Its core content is the principle audi alteram partem, that no person shall be condemned unheard. It does not, however, prescribe a single mode of hearing. A party may be heard orally, upon affidavit, or by written submissions; what the law requires is that the party be afforded a fair and reasonable opportunity to present his case and to answer the case against him. 22.On the record before me, that opportunity was plainly afforded. The certified proceedings of the Tribunal show that the parties, by consent and through their respective advocates, elected to dispose of the Reference and the application by way of written submissions, that directions to that effect were given, and that both sides complied. The Appellant filed his Further Affidavit dated 12th July 2023 together with his submissions, both of which formed part of the record before the Tribunal. A party who consents to a particular mode of disposal cannot ordinarily be heard afterwards to complain that he was denied a hearing in that very mode. 23.Nor is it correct to say that the Further Affidavit was ignored. At paragraph 27 of the impugned judgment the Tribunal expressly recorded that, having perused the file, it observed that the tenant had stated in the Further Affidavit dated 12th July 2023 that during the Covid-19 period, specifically from May 2020 to November 2021, the business was not operating and no money was recovered; and at paragraph 28 it acknowledged that this very period was “what is causing the contention in the amount of arrears owed.” The Further Affidavit was therefore not merely received but actively engaged with; indeed it shaped the Tribunal’s approach to the question of quantum. The authorities relied upon by the Appellant concern decisions reached without any opportunity to be heard at all, and are of no assistance to him on these facts. 24.The complaint of a denial of fair hearing is, in the circumstances, without merit. To that extent, grounds 1, 4 and 5 of the appeal fail. Whether the Tribunal correctly evaluated the evidence it admittedly considered is a different question, to which I now turn. (c) Whether the finding of indebtedness and the computation of arrears can be sustained 25.The second and third grounds, together with so much of the fourth ground as concerns the evaluation, as opposed to the mere receipt, of evidence, challenge the substance of the Tribunal’s finding that the Appellant was indebted to the Respondents in the sum of Kshs. 398,000.00. Having re-examined the record, I have come to the conclusion, with respect, that this finding cannot stand. 26.The difficulty begins with the Tribunal’s own findings as to the state of the evidence. At paragraph 25 the Tribunal found that the documents annexed by the tenant were “scanty” and did not show the full payments for the periods claimed. At paragraph 26 it found that the landlord had narrated the arrears owed but had not provided any statement to show the position. In short, the Tribunal expressly found that neither party had laid before it a reliable account of what was due and what had been paid. A precise money judgment of Kshs. 398,000.00 is not easily reconciled with so candid a finding that the underlying figures had not been proved by either side. 27.The computation itself, set out at paragraph 29, bears out the difficulty. It is, with respect, internally inconsistent and rests avowedly upon assumption rather than proof. The Tribunal first computed a Covid-period balance by charging rent at Kshs. 22,000.00 per month for nineteen months (Kshs. 418,000.00) and deducting payments of Kshs. 160,000.00, arriving at Kshs. 258,000.00, and yet described that exercise as one made “assuming a 50% rebate was given for [C]ovid,” a rebate which, on the very figures used, was not in fact applied. It then introduced three further sums described as “amount[s] assumed to have been recovered” toward renovation, being Kshs. 418,000.00, Kshs. 286,000.00 and Kshs. 198,000.00, totalling Kshs. 902,000.00, from which it deducted the renovation cost of Kshs. 762,000.00 to yield Kshs. 140,000.00 said to be “recovered in excess,” before adding that sum to the Covid-period balance to reach Kshs. 398,000.00. 28.That reasoning is, in my respectful view, unsafe for several reasons. First, it is founded throughout upon figures the Tribunal itself characterised as “assumed,” in circumstances where it had already found that neither party had proved the relevant payments; a quantified liability cannot properly be built upon a foundation of express assumption. Secondly, the very rate of rent upon which the computation depends, namely Kshs. 22,000.00, as against the Kshs. 44,000.00 used elsewhere in the judgment and the reduced Covid-period and post-Covid rates contended for by the Appellant, was itself in dispute and was not resolved by reference to any proved agreement. Thirdly, the treatment of the renovation arrangement is conceptually confused: the monthly sum of Kshs. 22,000.00 retained by the tenant was, on the parties’ own arrangement, the means by which the tenant recouped his own outlay of Kshs. 762,000.00 on renovations, and not, without more, a debt owed to the landlord. Fourthly, and most troubling, the Tribunal candidly acknowledged at paragraph 30 that it had “mistakenly erred in the above math calculation” when the ruling was read out, and that it had “since amended” the figure; whatever the precise sequence of events, that acknowledgment can only diminish, rather than enhance, confidence in the correctness of the sum eventually arrived at. 29.For these reasons the finding that the Appellant was indebted to the Respondents in the sum of Kshs. 398,000.00, and the order for payment of that sum, cannot be sustained. Grounds 2 and 3 of the appeal, and ground 4 in so far as it concerns the evaluation of the evidence on quantum, accordingly succeed. (d) The termination notice and the consequential orders 30.There is a further and related difficulty. On the first issue the Tribunal expressly found that it could not establish the validity of the termination notice dated 17th April 2023, the notice never having been produced, so that the Tribunal was “not aware when the same was to take effect and cannot establish its validity based on the period.” It restated, correctly, the strict requirements which Cap. 301 and the authority of Manaver N. Alibhai (supra) impose upon a notice terminating a controlled tenancy. 31.Having so found, it is difficult to reconcile the Tribunal’s ultimate order, which placed the landlord at liberty, upon default, to distress for rent and to proceed to evict, with the assistance of the police. Distress and eviction are grave consequences which, in a controlled tenancy, ordinarily presuppose a valid termination notice and a determination of the tenancy in accordance with the Act. An order authorising distress and eviction sits uneasily with an unappealed finding that the very notice founding the termination could not be shown to be valid. To that extent also, the orders of the Tribunal are unsatisfactory. (e) The appropriate relief 32.It remains to consider the relief to which the Appellant is entitled. He invites the court to set aside the impugned judgment and to substitute for it a judgment in his own favour. In his Memorandum of Appeal he puts that figure at Kshs. 310,000.00; in his written submissions he contends that any arrears are capped at Kshs. 180,000.00 and that, on a full reckoning, it is the Respondents who are indebted to him. The variance between these figures is itself instructive, for it illustrates that the true state of the account between the parties remains genuinely unresolved. 33.I have carefully considered whether this court, in discharge of its duty to re-evaluate the record, can itself arrive at a reliable figure. I have concluded that, on the present record, it cannot. The court is confronted with the same evidential vacuum that confronted the Tribunal. There is no complete or audited rent account from either party; the cheques and mobile-money records are partial; the terms of the tenancy, including the applicable rate of rent at the various periods and the date upon which ordinary rent was to resume, are sharply disputed and turn upon documents and, possibly, oral evidence not fully ventilated below; and the foundational lease of 22nd November 2017 is itself the subject of a serious and unresolved allegation of forgery now before the Office of the Director of Public Prosecutions. In these circumstances, for this court to substitute a figure of its own, whether the Kshs. 310,000.00, the Kshs. 180,000.00, or any other sum, would be to repeat the very error of which the Appellant complains, namely the quantification of a liability upon an inadequate evidential foundation. 34.The just and proper course, in my view, is that adopted in the Appellant’s alternative prayer. The finding on quantum and the consequential orders having been found to be unsafe, the question of the arrears, if any, ought to be remitted to the Tribunal for hearing and determination afresh, upon proper evidence, before a differently constituted bench. I make it clear that nothing in this judgment is to be taken as a finding upon the true state of the account between the parties, upon the validity or otherwise of the lease dated 22nd November 2017, or upon the allegation of forgery, all of which remain at large for determination in the appropriate forum. 35.As to the allegation of forgery, I would only observe that it is a serious matter presently before the Office of the Director of Public Prosecutions, that the Tribunal made no finding upon it, and that this court is in no position to do so upon the present record. It must be left to the criminal process and to such properly constituted civil proceedings as the parties may be advised to pursue, and the rehearing herein directed should proceed without prejudice to either party upon that question. Disposition and orders 36.The upshot is that the appeal partly succeeds. I make the following orders:(i)The appeal is allowed in part.(ii)The grounds of appeal alleging a denial of fair hearing and a breach of the rules of natural justice (grounds 1, 4 and 5 in that respect) are dismissed.(iii)The grounds of appeal challenging the finding of indebtedness and the computation of the arrears (grounds 2, 3 and 4 in that respect) are upheld.(iv)The judgment of the Business Premises Rent Tribunal in Tribunal Case No. E437 of 2023 delivered on 27th September 2023 is set aside in so far as it (i) found the Appellant to be in arrears of Kshs. 398,000.00, (ii) ordered the defrayment of that sum by installments, and (iii) authorised the levying of distress and eviction upon default.(v)The question of the rent arrears, if any, payable by the Appellant, and the reliefs consequential thereon, is remitted to the Business Premises Rent Tribunal for hearing and determination afresh, before a differently constituted bench, upon the parties filing such further evidence, including proper statements of account, as they may be advised.(vi)For the avoidance of doubt, the interim orders heretofore in force shall continue to operate, and the status quo as regards occupation of the suit premises shall be maintained, pending the conclusion of the rehearing, unless the Tribunal otherwise orders.(vii)Each party shall bear its own costs of this appeal; the costs of the proceedings before the Tribunal shall abide the outcome of the rehearing. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18TH DAY JUNE OF 2026.E.K. WABWOTOJUDGEIn the presence of:Mr. Kuria Advocate for the AppellantMr. Njathi Advocate for the RespondentsCourt Assistants; Mary Ngoira and David Ngoosa.