https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5055

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC APPEAL NO. E001 OF 2025** **PAUL OTIENDE.....................................................................APPELLANT** **-VERSUS-** **WILBERFORCE NADIDA....................................................RESPONDENT** ***(Being an appeal against the Judgment of the Rent Restriction Tribunal at Nairobi (Hon. Hillary K. Korir, Chairperson) delivered on 10th December 2024 in Nairobi Rent Restriction Case No. 90 of 2016; Wilberforce Nadida v Paul Otiende)*** **JUDGMENT** 1. This is an appeal against the judgment of the Rent Restriction Tribunal at Nairobi ("the Tribunal") delivered on 10th December 2024 by its Chairperson, Hon. Hillary K. Korir, in Nairobi Rent Restriction Case No. 90 of 2016; Wilberforce Nadida v Paul Otiende. 2. The dispute concerns residential premises known as House No. S4 erected on Plot No. Nairobi/Block 62/203, Fort Jesus Estate, Kibera ("the suit premises"). The Respondent is the owner and landlord of the suit premises and the Appellant has at all times material to this appeal been his tenant. According to the Appellant, the tenancy commenced in December 2006 at a monthly rent of Kshs 5,000/= which was subsequently increased to Kshs 10,000/=. The Respondent for his part maintained that the tenancy commenced in the year 2008 at a monthly rent of Kshs 10,000/=, although his own Plaint pleaded that the Appellant had been his tenant "since 10 years ago", which would place the commencement of the tenancy in or about the year 2006. What is common ground is that the monthly rent payable at all times material to this appeal was Kshs 10,000/= and that the tenancy had subsisted for many years before the suit was instituted. **The proceedings before the Tribunal** 3. By a Plaint dated 27th January 2016 the Respondent, then acting in person, sued the Appellant before the Tribunal. He pleaded that the Appellant had been paying rent in instalments up to September 2015 and that thereafter no rent had been received from him whatsoever, in consequence whereof the arrears had accrued to Kshs 40,000/= as at January 2016. He prayed for (a) vacant possession; (b) recovery of arrears amounting to Kshs 40,000/= and an electricity bill consumed amounting to Kshs 10,063.70; (c) costs of the suit; and (d) any other relief. When the matter first came before the Tribunal on 28th January 2016 the Respondent stated that the Appellant was in rent arrears of Kshs 40,000/=, being four months’ rent. 4. On 18th July 2017 the Respondent took out a Notice of Motion seeking leave to levy distress for rent arrears then stated to be Kshs 250,000/=, access to a second unit on the suit premises said to be locked, vacant possession, and the pulling down of semi-permanent structures allegedly erected upon the property. On 19th July 2017 the Tribunal granted prayers 1, 2 and 3 of that application ex parte, directed that the application be served for inter partes hearing on the issue of vacant possession within fourteen days, and ordered the OCS Milimani to provide security. 5. On 21st November 2017, when the application came up for hearing, the Tribunal directed that it be served upon the Appellant to enable him respond, and further ordered that "in the meantime Tenant is to continue paying rent as usual." It is not in dispute that the Appellant thereafter paid the monthly rent of Kshs 10,000/= throughout the pendency of the suit. For the sake of accuracy I record that the direction to continue paying rent was made on 21st November 2017 and not on 19th July 2017. 6. Pursuant to an order of the Tribunal, a Rent Inspector, one David Onyango Obuba, inspected the suit premises on 16th February 2018 and filed a report of even date. He confirmed that the other unit was locked with one padlock but stated in terms that he was unable to confirm whether the said unit had been locked by the Appellant. 7. The Appellant filed a Statement of Defence and Counterclaim dated 6th May 2019 and filed on 8th May 2019 through the firm of Winnie A. Kungu, Advocate. He denied being in any rent arrears and averred that he had paid all rent due into the Respondent’s bank accounts at Standard Chartered Bank and thereafter at Barclays Bank (now ABSA Bank). He averred that by an exchange of letters dated 5th January 2008 and 7th January 2008 the Respondent had allowed him to repair the wooden door and the fence which had exposed the house to insecurity, and that by a further exchange of letters dated 10th April 2015 and 17th April 2015 the Respondent, having failed to keep the house in a proper state of repair, had allowed him to carry out the renovations and to render the invoice, in each case upon terms that the amount expended would be deducted from the rent payable. He counterclaimed the sum of Kshs 407,170/= being the cost of the said repairs and improvements, a declaration that he was not indebted to the Respondent in any rent, costs and interest. 8. It is common ground, and the record confirms, that the Respondent never filed a Reply to Defence or a Defence to Counterclaim. **The criminal proceedings** 9. The documents exchanged between the parties became the subject of two criminal prosecutions before the court at Kibera, the certified proceedings and judgments in both of which form part of the record of appeal. 10. In Criminal Case No. 1598 of 2019; **Republic v Paul Otiende**, instituted upon the Respondent’s complaint, the Appellant was charged with forgery of the lease agreement dated 1st December 2006 which he had filed before the Tribunal. The investigating officer testified that he recovered the lease agreement and the tenancy agreement and subjected them to document examination together with specimen writings supplied by the Respondent. PW4, IP Everlyne Othim, a document examiner attached to the DCI headquarters, testified that she and her colleagues "were required to examine two signatures in two different documents", namely the lease agreement and the tenancy agreement relating to the suit premises. She concluded that the signature on the lease agreement and the Respondent’s specimen signatures were made by different authors, and that the signature on the tenancy agreement and the Respondent’s specimen signatures were made by the same author. 11. By a judgment delivered on 16th February 2023, Hon. P. Mutua, Senior Principal Magistrate, acquitted the Appellant under **Section 215 of the Criminal Procedure Code**. The learned Magistrate held that the document produced was an uncertified photocopy in respect of which no foundation for the reception of secondary evidence had been laid; that although the document examiner had established that the lease agreement was not signed by the complainant as purported, and was "forged in that sense", there was no evidence that it was the Appellant who prepared or signed it; and that there was no evidence of an intention to deceive, the lease agreement having been in accordance with the terms actually agreed by the parties as to both rent and duration. The learned Magistrate further observed that the Respondent had not been truthful in alleging that the Appellant became his tenant in 2008, he having admitted in the companion prosecution that the Appellant had been his tenant since 2006, and the Appellant having produced deposit slips consistent with that earlier date. 12. In Criminal Case No. E1127 of 2020; **Republic v Wilberforce Nadida**, the Respondent was charged on three counts of forgery, making a false document without lawful authority and uttering a false document, all relating to a tenancy agreement dated 30th December 2014 upon which he relied. By a judgment delivered on 18th August 2022 the same court acquitted him under **Section 215 of the Criminal Procedure Code**, holding that although the document examiner had established that the tenancy agreement was not signed by the Appellant as purported, there was no evidence that the Respondent forged it or knew it to be forged, his explanation that he prepared the document and took it to the Appellant for signature having remained unshaken in cross-examination. 13. The outcome of the two prosecutions is therefore even-handed. The principal document relied upon by each party was found not to bear the signature of the person whose signature it purported to bear, and each party was acquitted for want of proof that he was the author of the forgery and for want of any intention to deceive. The prosecutions accordingly assist neither party in the civil dispute. 14. Of greater moment to this appeal is what the prosecutions did not touch. Neither the letters dated 5th January 2008, 7th January 2008, 10th April 2015 and 17th April 2015, nor the invoices dated 11th January 2008, 10th February 2008 and 21st May 2015 being the documents upon which the Counterclaim rests was the subject of any charge in either prosecution, and none of them was placed before the document examiner in either case. To the extent that it was urged before me that six of the Appellant’s documents were subjected to forensic examination and that the prosecution thereafter elected to prefer no charge in respect of the letters and the invoices, that submission is not borne out by the certified record, which establishes that two documents only were examined. I make the point because the correct position, as will appear, is of some consequence to the treatment of the Counterclaim. **The earlier interlocutory appeal** 15. On 12th October 2021 the Tribunal directed that the suit be canvassed by way of written submissions. That direction was the subject of ELC Appeal No. 12 of 2022; **Paul Otiende v Wilberforce Nadida**. By a judgment delivered by this Court on 20th December 2022 the appeal was dismissed on the ground that it had not been properly filed, but the Court expressly held that the Tribunal had erred in directing that the matter proceed by way of written submissions, submissions not being evidence. Following that judgment the Tribunal, by consent recorded on 21st August 2023, directed that the suit proceed to a full hearing to enable the parties adduce evidence and call witnesses. **The evidence at the trial** 16. The suit was heard orally on 7th May 2024 and 9th May 2024. Before turning to the evidence I observe that the typed proceedings are not in every respect sequentially arranged, the evidence of the two witnesses appearing in places to be interleaved. The attribution of the material passages is nonetheless plain from their content, and I have approached the record on that footing. 17. The Respondent testified as PW1. He stated that he is a retiree since the year 2000 and the owner of the suit premises; that Kibera was affected by the post-election violence and there was then no perimeter wall; that there was one metal door installed by the tenant and also a metal gate but that he never gave consent as per the letters appearing at pages 74 to 80 of the Appellant’s bundle; that he disputed that the Appellant had replaced the roof; that the issue of forgery was not proved; and that there were, in his view, no wear and tear. 18. On re-examination the Respondent stated: "I have not completed the arrears and cannot tell if it is 10,000/=. I want vacant possession." The word rendered in the typed record as "completed" can, in its context, only have been "computed". He added that there was a mabati fence and that the Appellant had constructed illegal structures which he rented out without authority; that there was a metallic door and not a gate and he did not know who fixed it; that the main gate was erected by all the landlords; that he never gave authority for any repairs and did not prepare the letters; and that he was not aware of any roof damage at all, though there was wear and tear which he would have replaced had he been asked. 19. On cross-examination he stated that, other than payment of rent, he needed to occupy the premises with his family, and that of the two main doors one had been constructed without his permission. 20. The Appellant testified as DW1. He adopted his Statement of Defence and Counterclaim, his witness statement and his bundle of documents. He testified that he had improved the house to habitable standards; that he did not lock the other unit; that he had previously been paying Kshs 5,000/= which was increased to Kshs 10,000/=; that he never refused to pay the increased rent; that he was ordered to pay Kshs 10,000/= pending the hearing of the suit and had done so for eight years to date; that he did not have a problem paying rent; that he used Kshs 407,000/= to improve the house with the consent of the landlord, the amount to be recovered from future rent; that by letter dated 5th January 2008 he wrote requesting to put up a fence, a gate and metal doors, to which the Respondent responded in January 2008, whereupon he carried out repairs for Kshs 90,000/=; that in April 2015 he wrote requesting authority to repair the roof, to which the Respondent consented on 17th April 2015; that he had no objection to a site inspection to confirm the repairs; that the total cost of the repairs came to Kshs 407,170/=; that there was no illegal structure; and that electricity is by token and he pays as per use. 21. Of central importance, the Appellant testified as follows: ***"On 15/9/2015 I paid 10,000 on 3/3/2016 I paid 40,000 to go towards the arrears (not disputed).*** ***I have no problem paying the balance of 10,000/=."*** 22. He added that he had no problem continuing to pay rent as he sought orders for the amount utilised for repairs; that efforts to resolve the matter through alternative dispute resolution had been fruitless; and that it would not be fair to evict him and give the premises to another tenant. 23. On cross-examination the Appellant stated that he was admitted as an advocate on 8th March 2024 and was previously a contractor; that there was no one in the other unit and he was not responsible for its non-occupation, the previous tenant not having handed over the keys and a padlock being on the door; that the tenancy agreement dated 26th November 2008 placed responsibility for repairs on the tenant; that he had been in arrears prior to 2015; that rent was deposited in the landlord’s bank account; that there were rent arrears; and that it was not true that there was an accumulated amount of 512,185. On re-examination he stated that he was a tenant from 2006; that Rowlands was receiving rent as his landlord; that he had been in occupation for 216 months; that the rent claimed was 40,000 only and the previous years were contested; and that he did not pay the 250,000 as it was not served on him and no distress was levied in respect of the same. 24. The Respondent gave further evidence in the course of the same hearing, stating that the Appellant was his tenant as per the tenancy agreement dated 26th November 2008; that there were arrears owing by the time of filing of Kshs 40,000/= which remained unpaid to date and that there were no further accruals; that the other unit remained locked; and that the Appellant pays Kshs 10,000/= per month. Under cross-examination by the Appellant’s counsel, however, he made the following admissions, which lie at the very heart of this appeal: ***"The claim of 40,000 is from September 2015 to January 2016.*** ***The tenant has since paid rent up to date. In March 2016, 40,000 was paid being rent plus arrears of 30,000. The tenancy is implied month to month. The tenant has paid rent to date."*** 25. In the same cross-examination the Respondent further conceded that the Rent Inspector’s report did not confirm who locked the premises; that the previous tenant left in 2016 and he came to know two months later; that the issue in respect of the unoccupied unit was not pleaded; that the documents produced by the Appellant were invoices and not receipts and that he "would have a problem with assessment"; that the entire estate is not fenced; and that he had no objection to inspection by a tribunal officer. 26. The Appellant produced in support of his case bank deposit slips occupying pages 195 to 375 of the record of appeal, being deposits made by him to the accounts of the Respondent and, in the earliest period, of the Respondent’s son Rowlands Nadida, spanning the period December 2006 to May 2024. **The Judgment of the Tribunal** 27. In its judgment delivered on 10th December 2024 the Tribunal framed three issues for determination, namely: whether the tenant was in rent arrears and how much; whether the tenant undertook repairs and was entitled to offset the same from the rent; and whether the tenant should deliver vacant possession to the landlord. 28. On the first issue the Tribunal correctly directed itself that the landlord bore the legal burden of proving that the tenant was in actual rent arrears, citing **Sections 107(1) and 109 of the Evidence Act**. It then disposed of the issue in a single sentence: "Other than the alleged rent arrears of 512,185,000 (the full particulars which were not provided). The plaintiff/Tenant admitted having arrears of 20000 and not 40,000 as stated by the Plaintiff." Beyond recording that admission the Tribunal entered judgment for no sum at all, made no finding upon the balance of the pleaded claim, and did not address the Respondent’s admissions in cross-examination. 29. On the second issue the Tribunal held that the purported agreement and letters relied upon by the tenant "were subject of criminal proceedings which yielded no fruit on the genuineness or otherwise and hence unreliable." No finding whatsoever was made upon the quantum of the repairs or upon the Counterclaim. 30. On the third issue the Tribunal invoked **Article 40 of the Constitution** and, relying upon the decision in **De Fransesco v Barnum (1890) 45 Ch.D 430** as cited in **Communication Workers Union of Kenya v Telkom (K) Ltd & 2 Others (2006) eKLR**, held as follows: ***"Basing on the above case, this Tribunal shall not sustain the tenancy as that shall aid the conversion of a contract of personal service into a contract of slavery."*** 31. The Tribunal thereafter cited **Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR** upon the position of a tenant holding over demised premises, and made the following final orders: ***"i. The Plaintiff/Tenant is to deliver vacant possession within 60 days subject to payment of rent up to then.*** ***ii. The alleged cost and repairs (if any) is to be offset from the alleged rent arrears owed.*** ***iii. Each party is to bear his own costs of the suit."*** **The appeal** 32. Aggrieved by the said judgment the Appellant preferred the instant appeal vide a Memorandum of Appeal dated 7th January 2025 raising eight grounds which may be summarised as follows: that the Chairperson erred in law by allowing himself to be influenced by the Respondent’s personal feelings towards the Appellant rather than by the contractual obligations of the parties, the Respondent having admitted that the Appellant had been paying rent consistently and was up to date at the time of the hearing, and by holding that sustaining the tenancy would convert a contract of personal service into a contract of slavery; that he misdirected himself in dismissing the Appellant’s documentary evidence as unreliable on the basis that it was the subject of criminal proceedings which yielded no fruit, without any evidence in support of that conclusion; that he rendered an ambiguous decision by ordering that the alleged cost of repairs be offset from the alleged rent arrears without determining how much was owed on either account; that he failed to consider and grant the Appellant’s Counterclaim for the refund of the repair costs despite the evidence on record; that he failed to apply the principles governing the grant of vacant possession under the **Rent Restriction Act, Cap 296**; that he disregarded the evidence, pleadings and submissions on record and analysed the matter upon facts that were largely his own creation; that on the whole he failed to apply his mind properly to the facts before him; and that he was outrightly biased against the Appellant. 33. The Appellant accordingly prayed that the appeal be allowed, the judgment of the Tribunal be set aside, judgment be entered in his favour in terms of his Counterclaim, and that the costs of the appeal be borne by the Respondent. 34. Before the appeal could be heard on its merits the Respondent took out a Notice of Motion dated 2nd March 2026 together with a Notice of Preliminary Objection of even date. Vide the ruling delivered on 22nd April 2026, the Court accordingly dismissed both the Preliminary Objection and the Notice of Motion, directed the Appellant to file and serve his record of appeal within thirty days in default whereof the appeal would stand dismissed, and ordered that the costs of the application and of the objection be in the cause. The Appellant complied, the record of appeal together with the supplementary record being dated 21st May 2026 and duly filed. 35. It follows that the questions whether the appeal has been overtaken by events and whether the substratum of the dispute survives were not disposed of by the ruling of 22nd April 2026 but were deliberately reserved to this judgment. I return to them in the analysis which follows. **The Appellant’s submissions** 36. The Appellant, acting in person, filed written submissions dated 10th June 2026. He began by tracing the background of the dispute. He submitted that the Respondent’s claim as pleaded was a modest one, being four months’ arrears of Kshs 40,000/= together with an electricity bill of Kshs 10,063.70, and contended that he was never served with the Plaint dated 27th January 2016. He further submitted that the tenancy agreement annexed to the Respondent’s Notice of Motion dated 18th July 2017 bore anomalies on its face, the same having been indicated as made on 26th November 2008 but signed on 30th December 2014, some six years later and after the expiry date of 7th December 2014 indicated in clause 1 thereof. He also contended that the ex parte orders granted on 19th July 2017 lapsed by dint of the Respondent’s failure to prosecute the application inter partes as contemplated by **Order 40 Rules 4, 5 and 6 of the Civil Procedure Rules**. 37. The Appellant then narrated the history of the criminal proceedings, highlighting the findings of the court at Kibera in its judgment of 16th February 2023, namely that he had been paying rent of Kshs 5,000/= since December 2006 before the same was increased to Kshs 10,000/=; that the only reason he included the lease agreement in the Tribunal case was to show the history of the parties’ relationship; and that there was not, and could not have been, an intention to deceive or defraud since all the terms of the lease were as agreed by the parties. He emphasised that he was acquitted and that neither the Respondent nor the prosecution appealed. He noted that the Respondent was likewise acquitted in Criminal Case No. E1127 of 2020 in respect of the tenancy agreement upon which the Respondent had relied. He thereafter identified seven issues for determination which substantially mirror his grounds of appeal. 38. On the first issue, being the ambiguity of the Tribunal’s decision, the Appellant submitted that the Tribunal ordered an offset of the alleged cost of repairs against the alleged rent arrears without determining how much, if any, was owed in repair costs, how much, if any, was owed in rent arrears, and what net balance was payable to either party. He submitted that a valid judgment or decree must be clear, precise and capable of execution without requiring the parties to speculate or to undertake further calculations, and relied upon **Ole Nganai v Arap Bor (1983) KLR 233** where the Court of Appeal held that a judgment or order which is nebulous, indefinite and uncertain is incapable of supporting a sensible decree and renders subsequent proceedings a nullity, the Court stating: ***"I am of the opinion that both the proceedings and the result reached by the judge were a nullity, his order being meaningless. The preliminary issue decided by the judge does not amount to a settlement at all."*** 39. He further submitted that the Respondent himself admitted at trial that the Appellant was not in rent arrears since the filing of the suit in January 2016; that he produced bank deposit slips covering eighteen years of tenancy to which no contrary evidence was adduced; and that the Tribunal’s failure to make a specific finding upon that admission was a fatal error which of itself warrants the setting aside of the judgment. 40. On the second issue, being the introduction of new evidence through submissions, the Appellant submitted that the Respondent’s submissions before the Tribunal introduced entirely new prayers and factual allegations not pleaded in the Plaint, namely the claim for rent arrears of Kshs 512,185,000/=, special damages for restitution, general damages for pain and suffering, and rent of Kshs 25,000/= per month for the second unit. He submitted that no evidence was led at the hearing to prove any of the said items and that what has not been established at an inter partes hearing cannot later be raised as fact or evidence in submissions. He relied upon **Erastus Wade Opande v Kenya Revenue Authority & Another, Kisumu HCCA No. 46 of 2007** and **Nancy Wambui Gatheru v Peter Wanjere Ngugi, Nairobi HCCC No. 36 of 1993**, both as quoted by this Court in the earlier appeal between the same parties, and on **Ng’ang’a & Another v Owiti & Another [2008] 1 KLR (EP) 749**. He placed particular reliance on the dictum of Odunga, J (as he then was) in **Robert Ngande Kathathi v Francis Kivuva Kitonde [2020] eKLR** where the learned Judge stated: ***"Submissions, with due respect, do not amount to evidence unless expressly adopted as such. Consequently, in legal proceedings, evidence ought not to be introduced by way of submissions."*** 41. The Appellant further cited **Ole Nganai v Arap Bor (supra)** for the additional proposition that it is wrong for a court to grant to a party an order which had not been asked for by that party either in the pleadings or during the trial. 42. On the third and fourth issues, concerning the Counterclaim and the treatment of his documentary evidence, the Appellant submitted that his Counterclaim was supported by uncontroverted documentary evidence comprising the letters of 5th January 2008, 7th January 2008, 10th April 2015 and 17th April 2015 together with the invoices dated 11th January 2008, 10th February 2008 and 21st May 2015, and that the Tribunal dismissed the said evidence upon a speculative ground. He submitted that a trial court must consider all the evidence on record and cannot dismiss it without a proper basis, and that dismissing evidence in that manner violates the right to a fair hearing under **Article 50 of the Constitution**. He relied upon **John Peter Kamau Ruhangi v Kenya Reinsurance Corporation [2012] KECA 7 (KLR)** where the Court of Appeal, addressing a trial court’s failure to consider a counterclaim, held: ***"The Respondent claimed that sum in the counter-claim. If Justice Aganyanya had considered that claim, as he was under duty to do, in view of the evidence on record, he would have had no choice but to grant it."*** 43. He also relied upon **Mbogo & Another v Shah [1968] EA 93** for the proposition that an appellate court will interfere where the trial court misdirected itself or acted upon matters which it should not have acted upon, or failed to take into consideration matters which it should have taken into consideration, and in so doing arrived at a wrong conclusion. 44. On the misdirection concerning the criminal proceedings, the Appellant submitted that the Tribunal’s statement that his documents were the subject of criminal proceedings which yielded no fruit on their genuineness was both factually incorrect and legally flawed. Factually, the criminal proceedings did yield fruit in that he was acquitted. Legally, a criminal acquittal does not render civil evidence unreliable, the standard of proof in criminal cases being higher than in civil cases. He further submitted that where a party fails to adduce evidence in rebuttal the court is entitled to accept the unrebutted evidence as truthful. 45. On the issues of failure to apply his mind to the facts and of bias, the Appellant submitted that his evidence of rent payments spanning eighteen years was uncontroverted; that the Respondent admitted at trial that he was not in arrears since 2016, yet the Tribunal made no finding on rent arrears; that the Chairperson misapplied the principle in **De Fransesco v Barnum**, which applies to contracts of personal service such as employment and not to tenancies; and that the totality of the record suggests bias against him. He relied upon **R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [2000] 1 AC 119** on apparent bias, and invoked **Article 50(1) of the Constitution**. 46. On the grant of vacant possession, the Appellant submitted that the Respondent did not prove any of the grounds provided under **Section 14(1) of the Rent Restriction Act**, Cap 296, having proved neither rent arrears, nuisance, illegal use nor personal requirement, and that a protected tenant enjoys statutory security of tenure and cannot be evicted merely because the landlord wishes to recover possession. He relied upon **Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd [1996] eKLR** on the strictly circumscribed right of a landlord to recover possession of premises governed by rent restriction legislation. 47. On the Counterclaim, the Appellant submitted that the same was supported by the express written authorities of the Respondent, invoices from contractors and his uncontroverted testimony that the repairs were undertaken. He submitted that the Respondent filed no Defence to the Counterclaim and invoked **Order 7 Rule 4 of the Civil Procedure Rules**, contending that even without a formal application for judgment thereunder the trial court remained obligated to evaluate the Counterclaim on its merits. He submitted that the Respondent has had the benefit of the metal gate, the mabati fence, the roof repairs, the floor tiling and the water tank for over a decade and that it would amount to unjust enrichment to deny him a refund of the cost of the said works, which he urged should be allowed in full with interest at court rates from the date of the Counterclaim. 48. In conclusion the Appellant submitted that the judgment of the trial Chairperson is untenable in law and in fact, being ambiguous, ignoring uncontroverted evidence, misapplying legal principles and denying him a fair hearing. He prayed that the appeal be allowed, the judgment of the Tribunal be set aside in its entirety, judgment be entered in his favour on the Counterclaim in the sum of Kshs 407,170/= with interest at court rates until payment in full, a declaration do issue that he is not in rent arrears and is not liable to deliver vacant possession, and that the Respondent bears the costs of the appeal and of the proceedings before the Tribunal. **The Respondent’s submissions** 49. Upon the filing of the record of appeal this Court gave directions for the disposal of the appeal by way of written submissions and afforded each party a stipulated period within which to file and serve. The Appellant complied. The Respondent, notwithstanding that he was granted the opportunity to do so and was allowed time for that purpose, did not file any written submissions within the stipulated timelines, and no submissions had been filed on his behalf as at the date of the preparation and delivery of this judgment. 50. The consequence is not that the appeal is conceded. A first appellate court remains under a duty to re-evaluate the evidence and to satisfy itself that the decision appealed from is or is not sustainable, whether or not the respondent appears or submits. I have therefore approached the appeal upon the footing that the Respondent maintains the case he advanced before the Tribunal and in his application and Preliminary Objection dated 2nd March 2026, and I have tested the Appellant’s complaints against the whole of the record rather than against his submissions alone. Where the record discloses a point in the Respondent’s favour I have taken it into account notwithstanding the absence of submissions. **Analysis and Determination** 51. I have carefully considered the entire record of appeal, including the pleadings, the certified proceedings and the judgment of the Tribunal, the documentary exhibits, the criminal proceedings and judgments, the grounds of appeal, the Appellant’s written submissions, and the ruling of this Court delivered on 22nd April 2026. In my view the following issues fall for determination: ***i. Whether the appeal has been overtaken by events or is otherwise moot or incompetent.*** ***ii. Whether the Appellant was in rent arrears and, if so, in what sum.*** ***iii. Whether the Tribunal erred in ordering the Appellant to deliver vacant possession of the suit premises.*** ***iv. Whether the Tribunal erred in its treatment of the Appellant’s documentary evidence and in failing to determine the Counterclaim.*** ***v. Whether the allegation of bias against the trial Chairperson is established.*** ***vi. What reliefs should issue and who should bear the costs.*** 52. Before turning to those issues I remind myself of the duty of this Court on a first appeal. As a first appellate court this Court is enjoined to re-evaluate, re-assess and re-analyse the evidence on record afresh and to arrive at its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify and making due allowance for that disadvantage. See **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123** and **Peters v Sunday Post Limited [1958] EA 424**. **(i) Whether the appeal has been overtaken by events or is otherwise moot or incompetent** 53. This issue arises from the Respondent’s contention, raised in his application and Preliminary Objection dated 2nd March 2026, that the Appellant has vacated the suit premises, sublet the same to four third parties and materially altered the premises, with the result that the landlord and tenant relationship has ceased, the substratum of the dispute has disappeared and the appeal is moot. As already noted, this Court declined to determine those questions on a preliminary objection because they turn upon contested facts, and reserved them for the hearing of the appeal. 54. Having now scrutinised the entire record, I am satisfied that the appeal is neither moot nor incompetent, for four reasons. 55. First, the matters relied upon are not established. They rest upon the Respondent’s affidavit and its annextures, met by the Appellant’s sworn denial that he remains in occupation of House No. S4. The Respondent did not pursue the allegations by written submissions in the appeal and has not sought to have the disputed facts tried. Serious allegations of that character cannot be established upon conflicting affidavits, and the burden of establishing them lay upon the Respondent who asserted them. He has not discharged it. 56. Secondly, and more fundamentally, this is an appeal. The function of a first appellate court is to determine whether the decision of the tribunal below was right upon the material which was before that tribunal. Events said to have occurred after the delivery of the judgment appealed from cannot retrospectively supply a statutory foundation which was absent when the order was made. If the order for vacant possession was made without lawful basis in December 2024 and for the reasons which follow I am satisfied that it was it does not become lawful because of what the Appellant is alleged to have done in 2025 or 2026. 57. Thirdly, the allegations, if true, are not academic; they are actionable. Unlawful subletting, the erection of structures without consent and material alteration of the premises are each capable of founding a fresh claim for possession under **Section 14(1) of the Rent Restriction Act**. The proper forum for such a claim is the Tribunal, upon proper pleadings, particulars and evidence tested in the ordinary way. Nothing in this judgment precludes the Respondent from instituting such proceedings should he be so advised, and this judgment is not to be read as determining any question arising from events subsequent to 10th December 2024. 58. Fourthly, a live controversy plainly subsists between these parties independent of occupation. The Counterclaim for Kshs 407,170/= remains undetermined, as does the Respondent’s money claim. A dispute in which each party asserts a monetary entitlement against the other is not moot merely because the underlying tenancy may have altered its character. The doctrine of mootness, as explained in the authorities relied upon by the Respondent, is directed at proceedings which have ceased to present any live controversy at all. That is not this case. 59. The first issue is accordingly answered in the negative. The appeal is properly before me and falls to be determined on its merits. **(ii) Whether the Appellant was in rent arrears and, if so, in what sum** 60. This is the central factual issue in the appeal and I approach it with particular care, both because the Tribunal did not resolve it and because the answer governs the fate of the claim for vacant possession. 61. The starting point is the burden of proof. The Tribunal directed itself correctly that a landlord who asserts that his tenant is in arrears must prove it, by dint of **Sections 107, 108 and 109 of the Evidence Act**. Rent arrears are a debt. A debt is proved by evidence of what was due, what was paid and what remains outstanding. The burden never shifted to the Appellant to prove a negative. 62. The second consideration is the compass of the claim. Parties are bound by their pleadings. The Plaint dated 27th January 2016 pleaded, in terms, that the Appellant "paid his rent in installments up to September, 2015 and since then, no rent has been received from him whatsoever", and that the arrears had in consequence "accrued to Kshs.40,000/= as at to date January, 2016". At the first appearance before the Tribunal on 28th January 2016 the Respondent quantified that sum as four months’ rent. The claim as pleaded was therefore a confined one: four months’ rent for the period October 2015 to January 2016, together with an electricity bill of Kshs 10,063.70. 63. It follows that the Respondent pleaded himself out of any claim in respect of the period before October 2015. His own case was that rent for that period had been paid, albeit by instalments which he accepted. The Appellant’s admission in cross-examination that he "had been in arrears prior to 2015" cannot therefore avail the Respondent. No claim in respect of any such earlier arrears was ever pleaded, particularised or quantified, no sum was ever put to the Appellant, and it was not open to the Tribunal, and it is not open to me, to enter judgment upon a claim which was never made. 64. Turning to the pleaded claim itself, the evidence is remarkable for the fact that the case for the Appellant is made largely out of the mouth of the Respondent. Under cross-examination the Respondent admitted that "the claim of 40,000 is from September 2015 to January 2016"; that "the tenant has since paid rent up to date"; that "in March 2016, 40,000 was paid being rent plus arrears of 30,000"; and, for the avoidance of any doubt, he repeated that "the tenant has paid rent to date". Those admissions were made by a party in respect of his own claim and are of the highest evidential value. 65. The Appellant’s evidence was to precisely the same effect. He testified that on 15th September 2015 he paid Kshs 10,000/= and on 3rd March 2016 he paid Kshs 40,000/= towards the arrears, adding and the record notes the point as "not disputed" that he had "no problem paying the balance of 10,000/=". 66. The two accounts reconcile arithmetically. Of the Kshs 40,000/= pleaded, Kshs 30,000/= was applied to the arrears out of the payment of 3rd March 2016, the remaining Kshs 10,000/= of that payment representing current rent. A balance of Kshs 10,000/= therefore remained. That is the figure which the oral evidence, taken as a whole, yields. 67. The Appellant has, however, consistently admitted a larger sum. In his submissions before the Tribunal he stated that upon the Respondent’s admission he was "simply in arrears of Ksh 20,000/= which were for October and November 2015", withheld as a set-off against the repair costs, and that the sum would be paid upon the Tribunal pronouncing itself on the entitlement to withhold. He maintained that figure in this appeal. The Tribunal, for its part, found that the tenant "admitted having arrears of 20000 and not 40,000". 68. I adopt the figure of Kshs 20,000/= rather than the figure of Kshs 10,000/=. A court does not find in favour of a party a sum smaller than that which the party himself concedes to be due; a formal admission, deliberately and repeatedly made in submissions and maintained on appeal, binds the party making it. The Respondent moreover suffers no prejudice whatever by that course, the figure adopted being the more favourable of the two to him. To that extent, and to that extent only, the Respondent’s claim for arrears is proved. 69. Beyond that admitted sum there is, in my judgment, no satisfactory evidence of rent arrears at all. I have reached that conclusion for the following reasons. 70. First, the Respondent produced no account. There is no rent ledger, no statement of account, no schedule of months due and months paid, and no reconciliation of any kind anywhere in the record. A party claiming a running debt accrued over years is expected to prove it by an account. None was offered. 71. Secondly, the Respondent admitted on oath that he had not computed the arrears and could not say whether they stood at Kshs 10,000/=. A litigant who cannot say what he is owed has not proved what he is owed. 72. Thirdly, the figure of Kshs 512,185,000/= which surfaced for the first time in the Respondent’s written submissions was never pleaded, never particularised, never put to the Appellant and never proved. It could not, upon settled principle, be introduced through submissions: see **Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR**. It is in any event arithmetically impossible. Upon the Appellant’s unchallenged evidence that he has been in occupation for 216 months, the entire rent for the whole of the tenancy at Kshs 10,000/= per month would amount to Kshs 2,160,000/=. A claim of over half a billion shillings in arrears upon such a tenancy is not merely unproved; it is incapable of being true. I note that the same figure appears in the oral record as 512,185, which only underscores the absence of any coherent computation. 73. Fourthly, the assertion that the deposit slips themselves disclose default was made from the bar and not proved. It was submitted before the Tribunal that a perusal of the slips revealed years in which only three months out of twelve were paid, and that "the lack of receipts is simply a lack of payment". But no schedule was prepared, no individual slip was identified, no missing month was named, and not a single month of alleged default was put to the Appellant in cross-examination so that he might answer it. The submission also sits uneasily with the Respondent’s own pleading that the Appellant paid by instalments up to September 2015, a practice which the Respondent accepted for years and which would naturally produce multiple slips for some months and a pattern of payment not aligned to calendar months. I have examined the slips comprised at pages 195 to 375 of the record. They are manuscript carbon copies of uneven legibility, spanning December 2006 to May 2024 and running to several hundred in number. Neither party invited the Tribunal to undertake a month-by-month reconciliation of them, and no such reconciliation was undertaken. I am not able to perform that exercise on this record, and I say at once that I do not regard the absence of such a reconciliation as telling against the Appellant. It was for the Respondent to prove his claim and to prove it with precision. He did not. 74. Fifthly, from the institution of the suit the Appellant paid the rent as it fell due. He was directed on 21st November 2017 to continue paying rent as usual and his uncontroverted evidence, given in May 2024, was that he had done so for eight years without default. The Respondent expressly confirmed that the Appellant pays Kshs 10,000/= per month and that "the tenant has paid rent to date". 75. I would state my conclusion on this issue with precision, because the question is one upon which it would be easy to say either too much or too little. It is not established, and I do not find, that the Appellant has been punctual in every month of an eighteen-year tenancy; he himself candidly admitted historic arrears prior to 2015, and his rent was for years paid in instalments. What is established, and what I do find, is the narrower but sufficient proposition that the Respondent, upon whom the burden lay, proved no arrears whatsoever beyond the Kshs 20,000/= which the Appellant admits and has always been ready to pay; and that from the institution of the suit in January 2016 to the close of the hearing in May 2024 the Appellant paid the rent as it fell due, a matter which the Respondent himself conceded in terms. Upon the claim as pleaded and adjudicated, therefore, the Appellant was not in rent arrears save as to the admitted sum of Kshs 20,000/=. 76. The Tribunal, having correctly identified the burden of proof, ought to have made precisely that finding. Its failure to determine the quantum of the arrears, and its failure to advert at all to the Respondent’s admissions in cross-examination, was a material misdirection which this Court is entitled and bound to correct. The Appellant’s complaint under this head succeeds. **(iii) Whether the Tribunal erred in ordering vacant possession** 77. The **Rent Restriction Act, Cap 296** Laws of Kenya, is protective legislation whose object is to restrict the rent of certain dwelling-houses and to protect tenants from eviction otherwise than in accordance with the Act. Central to that protective scheme is **Section 14(1)**, which opens with the following prohibitory words: ***"No order for the recovery of possession of any premises or for the ejectment of a tenant therefrom shall be made unless (a) some rent lawfully due from the tenant has not been paid, or some other obligation of the tenancy (whether under the contract of tenancy or under this Act), so far as is consistent with the provisions of this Act, has been broken or not performed; ..."*** 78. The section proceeds to enumerate the other specific grounds upon which possession may be recovered, including nuisance, deterioration of the premises by waste or neglect, and the requirement of the premises by the landlord for his own occupation, in each case subject to the conditions prescribed. The grounds are exhaustive. The burden of establishing the existence of a ground lies squarely upon the landlord who seeks possession. A statutory tenant under the Act cannot be evicted merely because the landlord desires his premises back or has grown weary of his tenant. That is the price which the legislature has exacted of landlords whose premises fall within the ambit of the Act, and it accords with the position taken by the Court of Appeal in respect of controlled tenancies generally, namely that where Parliament has created a statutory tenancy regime the landlord’s right to terminate the tenancy and recover possession is not absolute but is strictly circumscribed by statute. See **Gusii Mwalimu Investment Co. Ltd & 2 Others v Mwalimu Hotel Kisii Ltd [1996] eKLR**. 79. In the present case the only ground pleaded was non-payment of rent, coupled with the Respondent’s apprehension that the Appellant would be unable to pay in the future. For the reasons given under the preceding issue, that ground was not established. The sum of Kshs 20,000/= which was outstanding had been withheld openly, as a claimed set-off against repair costs, in circumstances where the Appellant had at all times expressed his readiness to pay it and had continued to pay the current rent throughout. Withholding of that character, in a modest sum, upon a bona fide claim to set off, by a tenant who has otherwise paid the rent as it fell due for eight years, does not amount to a failure to pay rent lawfully due such as would justify the extreme step of ejectment. Nor did the Respondent establish any other ground under **Section 14(1)**. The allegations of illegal structures and of the locking of the second unit were not pleaded as grounds for possession; the Respondent conceded in cross-examination that the issue of the unoccupied unit "is not pleaded"; and the Rent Inspector expressly declined to attribute the padlock to the Appellant. The Respondent’s assertion that he required the premises for his family was raised for the first time in cross-examination and was neither pleaded nor supported by the certificate of the conditions which **Section 14(1)** attaches to that ground. 80. Notwithstanding that state of the evidence the Tribunal made no finding that any rent lawfully due had not been paid within the meaning of **Section 14(1)(a)**, nor did it find the existence of any other ground under **Section 14(1)**. Instead it rested the order for vacant possession upon **Article 40 of the Constitution** and upon reasoning drawn from **De Fransesco v Barnum**, namely that the Tribunal would not sustain the tenancy as that would aid the conversion of a contract of personal service into a contract of slavery. 81. With the greatest respect to the learned Chairperson, that reasoning was a plain misdirection in law. The dictum of Fry, LJ in **De Fransesco v Barnum** is a statement of the equitable principle that courts will decline to decree specific performance of contracts of personal service, lest unwilling parties be compelled to maintain continuous personal relations with one another. The principle belongs to the law governing contracts of service, such as contracts of employment or engagements for personal performance, which is precisely the context in which it was cited in **Communication Workers Union of Kenya v Telkom (K) Ltd (supra)**. A tenancy of a dwelling-house protected by the **Rent Restriction Act** is not a contract of personal service. It is a contract for the use and occupation of land; and, more significantly, it is a relationship whose termination the legislature has deliberately removed from the realm of the landlord’s personal wishes and placed within the confines of **Section 14(1) of the Act**. The continuation of a statutory tenancy compels no personal service from the landlord; it obliges him only to continue receiving rent, which upon the evidence he had been receiving throughout. To treat the landlord’s admitted personal antipathy towards his tenant as a basis for ejectment is to substitute sentiment for statute. 82. **Article 40 of the Constitution**, which the Tribunal also invoked, does not assist the Respondent either. The right to property is guaranteed subject to law, and the **Rent Restriction Act** is precisely such a law of general application regulating the exercise of proprietary rights in controlled dwelling-houses. A landlord who lets premises falling within the Act takes his proprietary rights subject to the tenant’s statutory protection. **Article 40** cannot be read so as to dissolve the very protection which Parliament has enacted; to do so would be to render **Section 14(1)** a dead letter in every case in which a landlord invoked his title. 83. The decision in **Kasturi Limited v Nyeri Wholesalers Limited (supra)**, which the Tribunal cited, was with respect distinguishable. It concerned a tenant holding over after the expiry of a lease in the face of an express notice of non-renewal. In the present case there was no finding, and no evidence, of any lawful termination of the tenancy. On the contrary, the Respondent was receiving rent up to the time of the hearing and himself described the tenancy as "implied month to month". 84. It follows that the order for vacant possession was made without any statutory foundation and cannot stand. Grounds 1, 5 and 6 of the appeal accordingly succeed. **(iv) Whether the Tribunal erred in its treatment of the documentary evidence and the Counterclaim** 85. The Appellant’s Counterclaim of Kshs 407,170/= was anchored upon the letters of 5th January 2008, 7th January 2008, 10th April 2015 and 17th April 2015, together with the invoices dated 11th January 2008, 10th February 2008 and 21st May 2015, all of which were produced at the trial, and upon his sworn testimony that he carried out the works with the Respondent’s written consent upon terms that the cost would be offset from rent. The Respondent’s answer was a bare denial of the authorship of the letters coupled with the assertion that they were forgeries. The Tribunal disposed of that entire body of evidence in a single sentence, holding that the documents "were subject of criminal proceedings which yielded no fruit on the genuineness or otherwise and hence unreliable." 86. That holding was, with respect, erroneous on several fronts. 87. First, it was a non sequitur. The fact that criminal proceedings did not conclusively determine the genuineness of a document one way or the other cannot, without more, render that document unreliable in civil proceedings. The civil tribunal remained under a duty to weigh the document for itself, upon a balance of probabilities, together with all the other evidence bearing upon its authenticity. An inconclusive criminal process is a neutral fact; it neither proves nor disproves anything in the civil suit. The two proceedings serve different purposes and apply different standards of proof. 88. Secondly, the holding proceeded upon a misapprehension of what the criminal proceedings had concerned. As I have found, the documents which underpin the Counterclaim were never charged in either prosecution and were never placed before the document examiner in either case. The prosecutions concerned the 2006 lease agreement and the 2014 tenancy agreement, neither of which founds the Counterclaim. The Tribunal therefore rejected the letters and invoices by reference to criminal proceedings which had nothing whatever to say about them. I should add, in fairness to the Respondent, that it does not follow from this that the letters were forensically vindicated; they were not examined at all, and the Appellant’s submission to the contrary is, as I have said, unsupported by the record. The correct position is simply that the criminal proceedings were irrelevant to them in either direction. 89. Thirdly, the burden of proving that the letters were forgeries lay upon the Respondent who alleged forgery, by dint of **Sections 107, 108 and 109 of the Evidence Act**; and the standard of proof for an allegation of fraud or forgery in civil proceedings, while not the criminal standard, is higher than the ordinary balance of probabilities. See **R.G. Patel v Lalji Makanji [1957] EA 314** and **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR**. The Respondent led no evidence whatsoever to discharge that burden in the civil proceedings. He called no document examiner, produced no rebuttal material and filed no Defence to the Counterclaim. That omission is the more striking because the Respondent was plainly alive to the availability of forensic examination, having himself procured the examination of two other documents in the criminal process. Having disputed the authorship of the letters of 7th January 2008 and 17th April 2015 for years, he never once subjected them to the very process he had invoked in respect of other documents. His bare denial could not, in law, displace documents which had been served upon him years before the hearing and which he never sought to have tested. 90. Fourthly, and in any event, the Tribunal wholly failed to determine the Counterclaim. A counterclaim is for all purposes a cross-suit which must be heard and determined upon its merits. The duty of a trial court to consider a counterclaim in view of the evidence on record was affirmed in **John Peter Kamau Ruhangi v Kenya Reinsurance Corporation (supra)**. The Tribunal’s final order directing that "the alleged cost and repairs (if any) is to be offset from the alleged rent arrears owed" determined nothing at all. It quantified neither the repairs nor the arrears and left the parties to speculate as to who owed what to whom. A judgment must be certain and capable of execution; an order which is nebulous, indefinite and uncertain is incapable of supporting a sensible decree. See **Ole Nganai v Arap Bor (1983) KLR 233**. The offset order was precisely such an order. Grounds 2, 3, 4, 6 and 7 of the appeal accordingly succeed. 91. The Tribunal also erred in entertaining, without demur, the reliefs which the Respondent introduced for the first time in his submissions, namely the claim for Kshs 512,185,000/=, special damages, general damages and mesne rent for the second unit. It is trite that parties are bound by their pleadings and that submissions are neither evidence nor a vehicle for new claims. See **Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR** and the authorities cited by this Court in ELC Appeal No. 12 of 2022 between the same parties. **(v) Whether bias is established** 92. The Appellant’s final ground was that the trial Chairperson was outrightly biased against him. An allegation of bias against a judicial officer is a grave one and is not established merely by demonstrating that the officer fell into error, however serious that error. The test is objective, namely whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. 93. Having found that the errors in the judgment under appeal are amply sufficient to dispose of this appeal, I do not consider that the material on record justifies the further and graver conclusion that the learned Chairperson was actuated by bias, as opposed to having misdirected himself in law and in fact. I decline to make that finding. Ground 8 of the appeal fails to that limited extent, without in any way affecting the outcome of the appeal. **(vi) Reliefs and costs** 94. Having found the appeal to be merited, the question which follows is whether this Court should remit the matter to the Tribunal for re-determination or proceed to make the orders which the Tribunal ought to have made. This dispute has been within the judicial system since 27th January 2016, a period exceeding ten years. The evidence was fully taken, the record before this Court is complete and the issues are narrow. Remitting the matter would visit further delay and expense upon parties whose dispute is, at bottom, a modest one. In the exercise of the powers conferred upon this Court by **Section 78 of the Civil Procedure Act**, I consider it just to re-evaluate the evidence and to determine the suit and the Counterclaim finally. 95. Upon the Respondent’s claim I find and hold as follows. The claim for vacant possession was not established, no ground under **Section 14(1) of the Rent Restriction Act** having been proved, and it is dismissed. Upon the arrears, and for the reasons given under issue (ii) above, the claim succeeds to the extent of Kshs 20,000/= only, being the rent for October and November 2015 admitted by the Appellant to have been withheld. The claim for the electricity bill of Kshs 10,063.70 was not supported by any evidence at all, the Appellant’s unchallenged testimony being that electricity is by token and that he pays as per use, and it is likewise dismissed. 96. Upon the Counterclaim, and upon my own re-evaluation of the evidence, I am satisfied upon a balance of probabilities that the Appellant carried out the repairs and improvements to the suit premises with the written consent of the Respondent upon terms that the cost would be recovered from the rent, and that the cost so incurred was Kshs 407,170/=. I so find for the following reasons: the letters of consent were served upon the Respondent years before the hearing and were never impeached by any evidence; the Respondent filed no Defence to the Counterclaim, so that the claim stood uncontested upon the pleadings; the invoices were produced and the Appellant’s sworn testimony as to the works and their cost was not displaced in cross-examination; the works themselves, including the gate, the fencing, the roofing, the floors and the water tank, were largely not disputed as physical facts, the Respondent’s quarrel being with the question of consent rather than with the existence of the works; and the Respondent, who admitted having carried out no repairs of his own, bore in any event the statutory obligation of structural repair under **Section 26 of the Rent Restriction Act**. 97. I have not overlooked the point taken by the Respondent in cross-examination that the documents produced "are invoices and not receipts", and that he "would have a problem with assessment". The point is a fair one and deserves an answer. Expenditure of this character partakes of the nature of special damages and must be specifically pleaded and strictly proved. But strict proof does not invariably require the production of a receipt. What is required is evidence which satisfies the court, upon a balance of probabilities, that the sums claimed were in truth expended. Here the sum was specifically pleaded and particularised in the Counterclaim; it was supported by dated invoices rendered by the contractors; it was spoken to on oath by the Appellant, himself a former contractor in roads and houses, whose evidence on the point was not shaken; the underlying works were admitted to exist; the written consents provided the commercial context in which the expenditure was incurred; and no rival figure, valuation or assessment of any kind was ever offered by the Respondent, who filed no responsive pleading and who declined the opportunity to have the works valued although he raised no objection to inspection. In those circumstances I am satisfied that the expenditure has been proved to the requisite standard. The Counterclaim accordingly succeeds in the sum of Kshs 407,170/=. 98. Setting off the admitted arrears of Kshs 20,000/= against the sum of Kshs 407,170/= found due upon the Counterclaim, there remains a net sum of Kshs 387,170/= due and payable by the Respondent to the Appellant. 99. The Appellant sought interest upon the Counterclaim at court rates from the date of its filing. The sums in question were expended as far back as 2008 and 2015 and the Appellant has been kept out of his money ever since. I consider it just to award interest upon the net sum at court rates from 8th May 2019, being the date upon which the Counterclaim was filed and the claim thereby placed formally before the Tribunal, until payment in full. 100. On costs, **Section 27 of the Civil Procedure Act** provides that costs shall follow the event unless the court for good reason otherwise orders. The rule is not immutable. The section confers a discretion which, though it must be exercised judicially and upon reason and not capriciously, is wide enough to permit a court to decline to award costs to a successful party where the circumstances properly so warrant. 101. The Appellant has substantially succeeded in this appeal and in the ordinary course he would have his costs. I have nevertheless come to the conclusion, after anxious consideration, that this is a proper case in which each party should bear his own costs. The relationship between these parties is a subsisting one of long standing. The Appellant has been the Respondent’s tenant since December 2006, a period approaching twenty years, and the effect of this judgment is not to sever that relationship but to restore and to preserve it. 102. Accordingly, and notwithstanding the Appellant’s success, each party shall bear his own costs of this appeal and of the proceedings before the Tribunal. **Final orders** 103. In the end, and for the reasons set out above, I make the following final orders: **i. The Appeal is hereby allowed and the Judgment and orders of the Rent Restriction Tribunal at Nairobi delivered on 10th December 2024 in Nairobi Rent Restriction Case No. 90 of 2016 are hereby set aside in their entirety.** **ii. In substitution therefor, the Respondent’s claim for vacant possession of the suit premises is hereby dismissed.** **iii. The Respondent’s claim for the electricity bill of Kshs 10,063.70 is hereby dismissed.** **iv. The Respondent’s claim for rent arrears is allowed only to the extent of Kshs 20,000/=, being the admitted withheld rent for the months of October and November 2015.** **v. The Appellant’s Counterclaim is hereby allowed in the sum of Kshs 407,170/=.** **vi. Upon setting off the sum of Kshs 20,000/= awarded in order (iv) above against the sum of Kshs 407,170/= awarded in order (v) above, the Respondent shall pay to the Appellant the net sum of Kshs 387,170/=.** **vii. The net sum in order (vi) above shall attract interest at court rates from 8th May 2019 until payment in full.** **viii. For the avoidance of doubt, it is hereby declared that, save for the sum of Kshs 20,000/= referred to in order (iv) above, the Appellant was not, upon the claim as pleaded and adjudicated before the Tribunal, in arrears of rent, and he is not liable to deliver vacant possession of the suit premises upon the basis of the Judgment hereby set aside.** **ix. Nothing in these orders shall preclude the Respondent from instituting such fresh proceedings before the Rent Restriction Tribunal as he may be advised in respect of any matter arising after 10th December 2024.** **x. Each party to bear own costs of the Appeal and the proceedings before the Tribunal.** **It is so ordered.** **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF JULY 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:-** **Mr. Paul Otiende the Appellant appearing in person.** **N/A for the Respondent.** **Court Assistant: Joanne Omondi.**