https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/493

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MURANGA COUNTY COURT NAME: MURANGA MAGISTRATE COURT CASE NUMBER: MCCC/E020/2025 MARGARET WANGARI MAINA AND MARTIN NDEREBU GAKOBO VS ERIC KOMU MUHORO JUDGMENT 1. The plaintiffs herein have sued the defendant for the following orders; 1. A declaration that the defendant breached the lease agreement dated 24th December 2023; 2. Special damages of Kshs. 329,000/= 3. In the alternative to prayer (b) above refund of Kshs. 120,000/= 4. Costs of this suit and interest thereon at court rates till payment in full; 5. Any other and/or further relief(s) that this honorable court may deem fit and proper to grant. 2. The plaintiffs claimed that on 24 th December 2023, the 1st defendant entered into a lease agreement with the defendant for lease of a pub situated on land parcel Loc. 8/Matharite/ 1585. The lease was to run for a period of one year from 1st January 2024. The lease included access to the entire premises comprised of a lounge room, pub, store and one additional room. The monthly rent payable for access to the premises was Kshs. 20,000/=. 3. The plaintiffs claimed that on 24th December 2023, they remitted a year’s rent of Kshs. 240,000/=. However, despite paying the rent as agreed and complying with the terms of the lease agreement, the defendant refused to grant the plaintiffs access to the lounge room which he unlawfully leased to third parties. The plaintiff’s claim was for a sum of Kshs. 329,000/= being the rental amount of Kshs. 240,000/= and the cost of valuation being Kshs. 35,000/=. 1. Interlocutory judgment was entered against the defendant who did not file his response within the stipulated time. 2. At the hearing of the matter, both plaintiffs testified in support of their case. They reiterated the contents of their pleadings and produced the valuation report and receipt, the agreement dated 24th December 2023, an mpesa statement, a bank statement and a demand letter. # ISSUES, ANALYSIS AND DETERMINATION 1. From the pleadings and the evidence before this court, the central issues for determination are; 1. Whether the plaintiffs entered into a lease agreement with the defendant; 2. Whether the plaintiffs paid the lease price of Kshs. 294,000/=; 3. Whether the defendant breached the lease agreement; 4. Whether the plaintiffs are entitled to a refund of the lease price and cost of valuation. 2. It is the plaintiffs’ case that the 1st plaintiff entered into an agreement with the defendant for lease of a pub situated on land parcel Loc. 8/Matharite/ 1585. The lease was to run for a period of one year from 1st January 2024. To prove this claim, the plaintiff produced a hand-written lease agreement whereby the defendant agreed to lease the premises to the 1st plaintiff for a period of 1 year at a monthly rent of Kshs. 20,000/= per month. The authenticity of the agreement was not challenged. It was further corroborated by the valuation report dated 8th November 2024, which confirmed that the defendant was the owner of land parcel No. Loc. 8/Matharite/1585, on which the premises and the business establishment were situated. The evidence adduced therefore proved the existence of a lease agreement between the 1st plaintiff and the defendant. 3. The plaintiffs produced copies of an M-pesa statement and an Equity bank account statement to establish that the 2nd plaintiff had paid a cumulative sum of Kshs. 240,000/= to lease the premises. The 2nd plaintiff explained that he had paid the lease price as the 1st plaintiff is his wife. It is noteworthy that the transaction reference numbers are captured in the lease agreement which is duly signed by the defendant. The second issue is thus answered in the affirmative. 1. Accordingly, this court finds that the plaintiffs proved that they had entered into a valid lease agreement with the defendant and that they had paid the lease price as agreed. Having done so, the evidential burden thus shifted to the defendant to prove that he had given the 1st plaintiff vacant possession of the premises. The Court of Appeal in the case of [***Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi - Deceased) v Ropkoi & another (Civil Appeal 345 of 2000) [2004] KECA 65 (KLR) (10 December 2004) (Judgment)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2004/65/eng%402004-12-10) explained this shift in the evidential burden thus; *“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (1) of the Evidence Act Cap 80, which provides:* *“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”* *There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act, thus:* *“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.* *112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”* *The two sections carry forward the often repeated evidential adage: “he who asserts must prove.”* 1. In this case, the defendant did not lead evidence to counter the plaintiffs’ claim that after receiving the lease price, he let out the premises to a third party. He failed to prove that he had performed his part of the bargain by delivering vacant possession of the premises to the 1st plaintiff. Consequently, this court finds the defendant in breach of the lease agreement. 1. Turning to the reliefs sought, the plaintiffs have urged this court to award them special damages of Kshs. 329,000/= being the sum of the rental amount of Kshs. 240,000/= and the cost of valuation being Kshs. 35,000/=. The plaintiffs were not only required to plead their claim for special damages specifically. It was also their duty to prove the claim with a degree of certainty. 2. As already observed above, the plaintiffs proved that the lease price of Kshs. 240,000/= was paid to the defendant through production of an M-pesa statement and bank account statement. The cost of valuation was also proved through the production of the valuation report and a receipt for a sum of Kshs. 35,000/=. This court therefore finds that the plaintiffs proved the damages sought against the defendant. # CONCLUSION 1. The upshot of the foregoing is that this court finds merit in the plaintiffs’ claim. It is allowed in the following terms; 1. A declaration is hereby made that the defendant breached the lease agreement dated 24th December 2023; 2. Judgment is entered in favor of the plaintiffs against the defendant for a sum of Kshs. 329,000/= 3. The plaintiffs shall have the costs of this suit. 4. Interest shall accrue at court rates from the date of filing suit being, 6th February 2025, until payment in full. # DATED, SIGNED AND DELIVERED AT MURANG’A THIS 22ND DAY OF JULY 2026. **HON. GRACE WAITHĨRA** **SENIOR RESIDENT MAGISTRATE/ADJUDICATOR JUDGMENT READ ON THE VIRTUAL PLATFORM IN THE PRESENCE OF; C/A JEREMIAH** **MS. NYAGA FOR THE PLAINTIFFS** **NO APPEARANCE FOR THE DEFENDANT** SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. GRACE WAITHIRA** Muranga Magistrate Court Magistrate Court Date: 2026-07-22 12:39:04