https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4522

Kariuki v Denkon Enterprises Ltd (Environment and Land Appeal E226 of 2024) [2026] KEELC 4522 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELC 4522 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E226 of 2024 MN Kullow, J July 16, 2026 Between Peter Kariuki Appellant and Denkon Enterprises Limited Respondent (Appeal arising from the Judgment of the Chief Magistrate's Court at Nairobi (Hon. Lucy Njora, Senior Principal Magistrate) delivered on 16th December 2024 in Milimani CMELC No. E355 of 2022) Judgment 1.This Appeal arises from the Judgment of the Chief Magistrate's Court at Nairobi (Hon. Lucy Njora, Senior Principal Magistrate) delivered on 16th December 2024 in Milimani CMELC No. E355 of 2022, Denkon Enterprises Limited v Peter Kariuki. By the impugned Judgment, the trial court entered judgment in favour of the Respondent, finding, inter alia, that the Appellant was the Respondent's tenant, that he had trespassed upon the Respondent's property following the determination of the tenancy, and awarded the Respondent special damages of Kshs. 140,000/=, general damages of Kshs. 200,000/= for trespass, costs of the suit and interest. 2.The dispute before the trial court arose from the Respondent's claim that the Appellant had occupied House No. D10 on Plot D14, Umoja Estate, as its tenant, defaulted in payment of rent, and remained in occupation without lawful justification after the tenancy had been determined. The Respondent consequently sought recovery of rent arrears, damages for trespass and the attendant reliefs. The Appellant denied the Respondent's claim, disputing, among other matters, the existence of a tenancy relationship between himself and the Respondent and contending that he had been a tenant of a different entity. 3.Aggrieved by the said Judgment, the Appellant lodged the present Appeal through the Memorandum of Appeal dated 20th December 2024, raising eighteen (18) grounds of appeal which, Broadly, the Appellant contends that the learned trial magistrate erred in law and in fact by:a.Finding that there existed a landlord and tenant relationship between the Appellant and the Respondent without sufficient evidence and by improperly shifting the burden of proof to the Appellant.b.Failing to properly evaluate the evidence regarding the identity of the Appellant's landlord, the ownership of the suit premises, the particular premises occupied by the Appellant, and the legal effect of the proceedings before the Rent Restriction Tribunal.c.Erroneously finding that the Appellant had trespassed upon the Respondent's property and relying on the proceedings and orders of the Rent Restriction Tribunal in arriving at that finding.d.Awarding special damages for rent arrears and general damages for trespass contrary to the evidence on record and the applicable law. 5.On the basis of the foregoing grounds, the Appellant prays that the Appeal be allowed, the Judgment of the trial court be set aside, and that the Respondent be condemned to bear the costs of both the Appeal and the proceedings before the subordinate court. The Parties' Submissionsa.The Appellant's Submissions 6.The Appellant filed written submissions dated 8th May 2026 in support of the appeal. In the submissions, the Appellant condensed the numerous grounds of appeal into four principal issues for determination, namely: whether the trial court erred in finding that a landlord–tenant relationship existed between the Appellant and the Respondent; whether the trial court improperly shifted the burden of proof of the existence of that tenancy from the Respondent to the Appellant; whether the trial court erred in finding that the Appellant had trespassed on the Respondent's property; and whether the awards of Kshs. 140,000 as special damages and Kshs.200,000 as general damages were justified. 7.The Appellant relied on Sections 107, 108, 109 and 112 of the Evidence Act to argue that the legal burden of proving the existence of a tenancy rested upon the Respondent. In support of that proposition, reliance was placed on Manchester Outfitters Limited Vs Tailors and Textiles Workers Union (Civil Appeal No. 89 of 2018) [2024] KECA 304 (KLR) on the distinction between the legal and evidential burden of proof, Maria Ciabaitaru M'Mairanyi & Others Vs Blue Shield Insurance Co. Ltd [2005] 1 EA 280 on the party upon whom the burden of proof rests, and Hon. Basil Criticos & Another Vs Third Engineering Bureau of China City Construction Group Company Limited; Masamo (Third Party) (Environment and Land Case No. 8 of 2024) [2026] KEELC 1120 (KLR), which reaffirmed the principles governing the burden of proof. 8.The Appellant submitted that the Respondent, having alleged the existence of a tenancy relationship, bore the legal burden of proof, and that the trial court misdirected itself by shifting that burden to the Appellant before the Respondent had discharged its evidentiary obligation. It was further argued that the evidence adduced at trial, including rent receipts issued by Splendid Links Limited and a CR12 showing that the Respondent was only incorporated in 2016, demonstrated that the Appellant was a tenant of Splendid Links Limited in House No. D12 on Plot D14 and not a tenant of the Respondent in House No. D10 as pleaded. The Appellant also faulted the trial court for relying on the Rent Restriction Tribunal proceedings instead of independently evaluating the evidence before it, contending that those proceedings related to a different house altogether. 9.On the issues of trespass and damages, the Appellant argued that the Respondent failed to prove ownership of the suit property as required under Section 26(1) of the Land Registration Act and was therefore not entitled to damages for trespass. In support of this argument, the Appellant relied on Hon. Basil Criticos & Another Vs Third Engineering Bureau of China City Construction Group Company Limited; Masamo (Third Party) [2026] KEELC 1120 (KLR), where the Court held that a claim for trespass cannot succeed in the absence of proof of ownership. 10.The Appellant further submitted that the trial court erred in awarding both rent arrears and general damages for the same period of occupation, thereby resulting in unjust enrichment, and that the awards were unsupported by the evidence, particularly since the only documentary evidence showed the monthly rent to be Kshs. 10,000 rather than Kshs. 14,000 as alleged by the Respondent. Consequently, the Appellant urged the Court to allow the appeal, set aside the judgment of the trial court, and award the costs of the appeal.b.The Respondent’s Submissions 11.In response, the Respondent filed written submissions dated 5th June 2026 opposing the appeal. The Respondent identified two principal issues for determination, namely: whether there existed a landlord–tenant relationship between the parties and whether the award of damages for trespass was justified. 12.The Respondent maintained that the tenancy relationship had already been conclusively determined by the Rent Restriction Tribunal, which ordered the Appellant to vacate the premises following findings that he had become a nuisance tenant, and that his continued occupation after the termination of the tenancy rendered him a trespasser. It was further submitted that revisiting the issue of tenancy would offend the doctrine of res judicata, as the Tribunal, being vested with jurisdiction to determine landlord–tenant disputes, had already pronounced itself on the matter. 13.The Respondent further submitted that the reference in the pleadings to House No. D10 instead of House No. D12 was a mere clerical error that was clarified during the hearing through oral testimony and documentary evidence. It was argued that the Appellant had always known the Respondent to be his landlord, having received notices from the Respondent and paid rent into the Respondent's designated account. 14.The Respondent contended that the Appellant's assertion that Splendid Links Limited was his landlord was an afterthought raised only after proceedings had been instituted. 15.In distinguishing the Appellant's reliance on Hon. Basil Criticos & Another Vs Third Engineering Bureau of China City Construction Group Company Limited; Masamo (Third Party) [2026] KEELC 1120 (KLR), the Respondent submitted that the authority concerned competing claims of ownership in a trespass claim and was therefore inapplicable to the present dispute, which arose from a landlord–tenant relationship. 16.On the issue of trespass and damages, the Respondent submitted that the Appellant's continued occupation of the premises after the Tribunal had terminated the tenancy constituted trespass, thereby entitling the Respondent to damages. It was further argued that the trial court had exercised restraint by awarding Kshs. 200,000 in general damages against a claim of Kshs. 1,600,000, and that the damages ought to have been enhanced rather than interfered with. The Respondent also maintained that the agreed monthly rent was Kshs. 14,000, relying on the rent increment notice dated 30th December 2018 and the Appellant's own evidence acknowledging that amount. Accordingly, the Respondent urged the Court to dismiss the appeal, uphold the judgment of the trial court, and order the Appellant to settle the outstanding rent arrears and damages. Issue for Determination 17.I have carefully considered the Record of Appeal, the judgment of the trial court, the grounds of appeal, and the rival written submissions filed by the parties. In my view, the following issue arises for determination: Whether the trial court erred in law and in fact in finding that the Respondent had proved its case against the Appellant on a balance of probabilities and was consequently entitled to the reliefs granted. Analysis 18.This Court is alive to its duty as a first appellate court as set out in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and reiterated in China Zhongxing Construction Company Ltd v Ann Akuru Sophia [2020] eKLR, namely, to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses testify. 19.The Appellant's principal grievance is that the trial court erred in finding that the Respondent was his landlord and, consequently, entitled to recover rent arrears and damages for trespass. Under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, a landlord is the person entitled, as between himself and the tenant, to receive the rents and profits of the premises, while a tenancy includes one created by agreement or by operation of law. The Act further confers upon the Tribunal jurisdiction to determine disputes arising from controlled tenancies, including questions relating to the existence of a tenancy, recovery of possession and rent arrears. 20.It follows that the Respondent, having instituted the suit, bore the legal burden under Sections 107, 108 and 109 of the Evidence Act of proving that it was the Appellant's landlord within the meaning of the Act, that the tenancy had lawfully come to an end, and that the Appellant thereafter remained in occupation without lawful justification. Only upon discharging that burden would the evidential burden shift to the Appellant to rebut the Respondent's case. 21.The Appellant's contention is that his landlord was Splendid Links Limited and not the Respondent. He relied on rent receipts issued by Splendid Links Limited and a CR12 showing that the Respondent was incorporated in 2016 whereas his occupation commenced in 2009. The trial court rejected that contention principally because the Appellant had not joined Splendid Links Limited to the proceedings and because the parties had previously litigated before the Rent Restriction Tribunal. While I agree that the failure to join Splendid Links Limited was a relevant consideration, I am unable, with respect, to agree that such omission could by itself establish the Respondent's claim. The Respondent was still required to prove, through its own evidence, that it had become the person entitled to receive rent from the Appellant. 22.Upon re-evaluating the evidence, however, I find that the Respondent discharged that burden. The record demonstrates that the parties had previously appeared before the Rent Restriction Tribunal, which exercised its statutory jurisdiction and determined the dispute between them as one arising from a landlord–tenant relationship. The Tribunal ordered the Appellant to give vacant possession of the premises, an order that was neither appealed nor set aside. Indeed, under Sections 9 and 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, the Tribunal is empowered to determine disputes relating to controlled tenancies, order recovery of possession and award rent arrears. The fact that the Tribunal entertained the dispute and granted those remedies is consistent with the Respondent's position that it was the Appellant's landlord at the material time. 23.I also note that the Appellant acknowledged receiving correspondence from the Respondent regarding payment of rent and the management of the premises. Although the Appellant maintained that Splendid Links Limited was his original landlord, the evidence before the trial court demonstrated that the Respondent had assumed the role of landlord long before the dispute culminating in the Tribunal proceedings arose. The earlier rent receipts issued by Splendid Links Limited therefore did not, without more, negate the subsequent relationship between the Appellant and the Respondent. 24.The Appellant further relied on the discrepancy between House No. D10 pleaded in the plaint and House No. D12 reflected in portions of the evidence. In my view, that inconsistency was satisfactorily explained during the trial and did not occasion any prejudice to the Appellant. The dispute throughout concerned the same premises occupied by the Appellant, and both parties fully participated in the proceedings with full knowledge of the property in issue. The discrepancy was therefore not fatal to the Respondent's claim. 25.The Appellant also faults the trial court for finding that he was liable for rent arrears and damages for trespass. The evidence on record shows that following the determination of the dispute before the Tribunal, the Appellant was directed to vacate the suit premises but failed to do so until his eventual eviction. Under Section 12(1)(e) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, the Tribunal is empowered to make orders for recovery of possession and payment of rent arrears. The Tribunal exercised that jurisdiction and its determination was never challenged by way of an appeal as provided under Section 15 of the Act. The Appellant therefore remained bound by those orders. 26.The Appellant further challenged the award of Kshs.140,000.00 as rent arrears on the basis that the monthly rent was Kshs.10,000.00 and not Kshs.14,000.00 I have reconsidered the evidence relied upon by both parties. Whereas the Appellant produced historical receipts reflecting rent of Kshs.10,000.00 the Respondent produced evidence of the rent increment and led evidence explaining the rent payable at the material time. More importantly, the Appellant did not produce evidence demonstrating payment of rent for the period claimed. The trial court was therefore entitled to conclude that the Respondent had proved its claim for rent arrears on a balance of probabilities. 27.With regard to the award of general damages for trespass, it is settled that trespass to land is actionable per se and an award of damages lies within the discretion of the trial court, depending on the circumstances of each case. In the present case, the trial court expressly considered that the Respondent had already been compensated through the award of rent arrears and, on that basis, declined to award the sum of Kshs.1,500,000.00 sought by the Respondent, instead awarding Kshs. 200,000.00 as general damages. I am not persuaded that the award was so inordinately high or based on an erroneous principle as to warrant interference by this Court. 28.Ultimately, having independently re-evaluated the evidence and the applicable law, I am satisfied that the Respondent discharged the burden placed upon it under Sections 107, 108 and 109 of the Evidence Act. The Appellant has not demonstrated that the trial court misapprehended the evidence, applied the wrong legal principles in arriving at its ultimate conclusion, or exercised its discretion injudiciously. Accordingly, I find no basis upon which this Court can interfere with the judgment of the trial court. Disposition 29.Consequently, I find that the appeal lacks merit and is hereby dismissed. 30.Accordingly, the judgment of the Chief Magistrate in MCELC No. E355 of 2022 delivered on 16th December 2024 is hereby upheld in its entirety. 31.The Respondent shall have the costs of this appeal.It is so ordered. DATED, SIGNED AND DELIVERED VIA E-MAIL AT NAIROBI ON THIS 16TH DAY OF JULY, 2026.MOHAMMED N. KULLOWJUDGE