https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3709

Sayani Investments Ltd v Mohammed t/a General Office Technology Solutions & 2 others (Environment and Land Appeal E093 of 2024) [2026] KEELC 3709 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3709 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E093 of 2024 EK Wabwoto, J June 18, 2026 Between Sayani Investments Limited Appellant and Feisal Shariff Mohammed t/a General Office Technology Solutions 1st Respondent Awo Feisal 2nd Respondent Stevluc Investments LLP 3rd Respondent (Being an appeal from the whole judgment of the Chief Magistrate’s Court at Nairobi, Milimani Commercial Courts (Hon. S.A. Opande, Principal Magistrate) delivered on 11th June 2024 in Nairobi Milimani Commercial Courts MCELC No. E508 of 2021) Judgment Introduction 1.This is an appeal from the judgment of the Chief Magistrate’s Court at Nairobi, Milimani Commercial Courts, delivered by Hon. S.A. Opande, Principal Magistrate, on 11th June 2024 in Nairobi Milimani Commercial Courts MCELC No. E508 of 2021. By that judgment, the trial court dismissed the Appellant’s claim for rent arrears of Kshs. 6,109,055.60 against the 1st and 2nd Respondents, held that the 3rd Respondent was not obligated to collect any rent arrears accruing prior to 1st November 2021, dismissed the 1st and 2nd Respondents’ counterclaim, and ordered that each party bear its own costs. 2.Aggrieved by the dismissal of its claim, the Appellant filed a Memorandum of Appeal dated 5th July 2024, setting out five grounds, essentially challenging the trial court’s findings that it had not proved the rent arrears claimed and that the 3rd Respondent was not liable to collect the same. The 1st and 2nd Respondents and the 3rd Respondent each oppose the appeal and have filed written submissions supporting the judgment of the trial court. Neither the dismissal of the 1st and 2nd Respondents’ counterclaim nor the discharge of KN Law LLP (the 4th Defendant at trial, an advocate’s firm that had held part of the sale proceeds as stakeholder and was struck out of the suit by consent on 27th July 2022) is the subject of this appeal. 3.I have carefully considered the record of appeal, the rival written submissions filed by counsel for the Appellant, the 1st and 2nd Respondents and the 3rd Respondent respectively, and the authorities relied upon, and now render my judgment. Background 4.The Appellant was at all material times the registered proprietor of all that property known as Old Nation House, erected on Land Reference Numbers 209/1142 and 209/1214, situate within Nairobi City County. 5.By a lease commencing on 15th February 2020, the Appellant let to the 1st Respondent premises measuring 10,600 square feet on the first floor of Old Nation House, for a term of six years, at an initial monthly rent of Kshs. 1,466,589.60 exclusive of VAT, escalating by five per cent annually over the term. The 2nd Respondent guaranteed the 1st Respondent’s obligation to pay rent under the lease. Clause 6.5 of the lease obliged the 1st Respondent, as Lessee, to demolish any stalls or structures it had erected and restore the premises to their original state on expiry or earlier determination of the lease. 6.By a letter dated 28th July 2020, the Appellant granted the 1st Respondent a rent concession of 23%, equivalent to Kshs. 366,647.24 per month, for the period April to September 2020, with credit notes issued accordingly. 7.By a further letter dated 15th February 2021, the Appellant informed the 1st Respondent that the statement of account as at 12th February 2021 reflected an outstanding balance of Kshs. 6,109,758.00, after crediting the January 2021 rent payment of Kshs. 1,824,203.00. The letter recorded an agreed repayment plan under which the February 2021 rent of Kshs. 1,824,203.00 was to be cleared by 10th March 2021, leaving a balance of Kshs. 4,285,555.00 to be repaid in monthly instalments of Kshs. 200,000.00 commencing 28th February 2021, with the 1st Respondent additionally issuing post-dated cheques covering rent for March, April and May 2021. 8.By a further letter dated 27th July 2021, the Appellant acknowledged a rent rebate of 25% for April 2021, amounting to Kshs. 2,419,870.00, and indicated that, with effect from August 2021, the parties would revert to the repayment arrangement recorded in the letter of 15th February 2021, which the Appellant in that later letter referred to as “our Agreement dated 15th February 2021”. 9.By an Agreement for Sale dated 29th June 2021, the Appellant sold Old Nation House to the 3rd Respondent. The transfer was registered, and possession handed over, on 1st November 2021. On the same date, the Appellant, the 1st Respondent and the 3rd Respondent executed a Deed of Novation under which the 3rd Respondent, as “Incoming Lessor”, assumed the Appellant’s rights, duties and obligations under the lease. Clause 1 of the Deed provided that, with effect from the “Effective Date”, the Appellant, as “Exiting Lessor”, novated and assigned its rights and benefits under the lease, and the 3rd Respondent accepted and agreed to assume, from and after the Effective Date, all of the Exiting Lessor’s rights, duties and obligations under the lease. Clause 8 defined the “Effective Date” as the date of registration of the transfer of the land from the Exiting Lessor to the Incoming Lessor, which, on the evidence, was 1st November 2021. 10.It is the Appellant’s case that, as at the effective date of the novation, the 1st Respondent was in rent arrears of Kshs. 6,109,055.60, and that the 3rd Respondent, having assumed the Appellant’s rights and obligations under the lease, was obligated to collect this sum from the 1st and 2nd Respondents and remit it to the Appellant. The proceedings before the trial court 11.By a Plaint dated 29th December 2021 and filed the same day, the Appellant sued the 1st, 2nd and 3rd Respondents together with KN Law LLP (then the 4th Defendant), seeking, in summary: a declaration that the 1st and 2nd Respondents are jointly and severally liable for rent arrears of Kshs. 6,109,055.60; declarations and consequential orders touching on the release, to the Appellant, of part of a sum of Kshs. 4,595,423.00 held by KN Law LLP as stakeholder from the sale proceeds; and, in the alternative, an order that the 3rd Respondent, having taken over the Appellant’s rights and obligations under the lease with effect from 1st November 2021, do recover the rent arrears from the 1st and 2nd Respondents and remit the same to the Appellant, together with interest and costs. 12.The 1st and 2nd Respondents, in their Statement of Defence and Counterclaim dated 10th February 2022, denied owing the rent arrears as pleaded and put the Appellant to strict proof. The 2nd Respondent averred, in paragraph 6 of the defence, that he was never notified of the alleged breach by the 1st Respondent before the lease was determined by the sale of the property (counsel for the 1st and 2nd Respondents subsequently acknowledged at the case-management stage, on 17th April 2024, that paragraph 6 of the defence had inadvertently referred to the “3rd Defendant” where it ought to have read “Plaintiff”, and sought to have it read accordingly). Both Respondents further averred that, the Appellant having novated its rights to the 3rd Respondent, it no longer had an enforceable claim against them, and counterclaimed Kshs. 9,850,000.00 as the value of stalls the 1st Respondent had constructed on the premises, which they contended he had been denied an opportunity to remove because the Appellant had failed to notify him of the impending sale. 13.The 3rd Respondent, in its Statement of Defence dated 22nd June 2022, denied being a party to or liable for any rent arrears accruing before the effective date of the Deed of Novation, and denied being under any obligation to collect such arrears on the Appellant’s behalf, while admitting that it had received security deposits totalling Kshs. 5,197,834.00 directly from the Appellant on 19th November 2021. 14.A discrete interlocutory dispute arose between the Appellant and the 3rd Respondent, on the one hand, and KN Law LLP, on the other, over the disposal of Kshs. 4,595,423.00 which KN Law LLP held as stakeholder. By a Notice of Motion dated 13th January 2022, KN Law LLP sought directions on the release of this sum. In a Ruling delivered on 12th April 2022, Hon. E.M. Kagoni, Principal Magistrate, construed clauses 1 and 8 of the Deed of Novation and held that the effective date of the novation was 1st November 2021; that the 3rd Respondent had contracted to assume the Appellant’s rights, duties and obligations under the lease only “from and after” that date; and that rental arrears accruing before the effective date could not be passed over to, or recovered by, the 3rd Respondent. Following that ruling, the disputed sum (recorded variously in the record as Kshs. 4,595,423.00 and Kshs. 4,594,823.00) was released to the 3rd Respondent on 21st April 2022. The Appellant initially lodged an appeal against the Ruling of 12th April 2022 but withdrew it on 17th October 2022. KN Law LLP was thereafter discharged from the suit, by consent and with no order as to costs, on 27th July 2022. 15.The substantive hearing proceeded before Hon. S.A. Opande, PM, on 15th February 2024 and 1st March 2024. The Appellant called one witness, its director, Mr. Karim Jetha (“PW1”), who adopted his witness statement and produced the Appellant’s bundle of documents, including the lease, the correspondence referred to above, the Agreement for Sale and the Deed of Novation, as exhibits 1 to 14. 16.In cross-examination, PW1 conceded that he had not broken down the figure of Kshs. 6,109,055.60, either in his witness statement or in the Plaint, that he had given only the aggregate figure, and that he had not produced invoices in support of the claim because, in his words, they were “bulky”. He maintained that clause 6.5 of the lease obliged the 1st Respondent to remove the stalls he had erected only on determination of the lease, that the 2nd Respondent was a mere guarantor and not a party to the lease, and that the Deed of Novation assigned to the 3rd Respondent the right and obligation to collect rent, including arrears, with effect from 1st November 2021. 17.The 1st and 2nd Respondents called two witnesses. DW1, a registered valuer, produced a valuation report dated 1st February 2022 assessing the value of the 1st Respondent’s improvements on the first floor at Kshs. 9,850,000.00. DW2, the 1st Respondent, while accepting in cross-examination that he owed some rent (“I owe but I have not agreed with the figure of the Plaintiff. My reconciliation is not before court”), maintained that his own accountant’s reconciliation had never been tested against the Appellant’s figures, that he had not been informed of the impending sale before it occurred, and that the Appellant had not tabulated or substantiated the claimed figure of Kshs. 6,109,055.60. 18.The 3rd Respondent called one witness, DW3, who testified that, under the Agreement for Sale and the Deed of Novation, the 3rd Respondent had assumed the landlord’s obligations under the lease only from the effective date of 1st November 2021, that it had no contractual obligation to ascertain or collect rent arrears accruing before that date, that the Appellant had never brought any rent arrears to its attention before the sale, and that the Appellant ought to pursue the 1st and 2nd Respondents directly. The parties thereafter filed and exchanged written submissions, after which the matter was set down for judgment. The judgment of the trial court 19.In its judgment delivered on 11th June 2024, the trial court framed three issues for determination, namely: (a) whether the 3rd Defendant was obligated to collect the alleged unpaid rent from the 1st and 2nd Defendants; (b) whether the 1st and 2nd Defendants owed the Plaintiff rent arrears totalling Kshs. 6,109,055.60; and (c) whether the 1st and 2nd Defendants’ counterclaim was merited. 20.On the first issue, the trial court held that the question whether the 3rd Defendant was obligated to collect the rent arrears had already been conclusively determined in the Ruling of Hon. E.M. Kagoni dated 12th April 2022, that this ruling had not been set aside on appeal or review (the Appellant having withdrawn the appeal it had lodged against it), and that the trial court was accordingly functus officio on the point and could not revisit it. 21.On the second issue, the trial court applied sections 107, 108 and 109 of the Evidence Act and the principles set out in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR and in Ng’ang’a v Wangui & Another (Civil Appeal 18 of 2020) [2022] KEHC 10228 (KLR), to the effect that the legal burden of proving the rent arrears alleged lay throughout on the Plaintiff and was never shared by the Defendants, and that an evidential burden would shift to the Defendants only once that legal burden had first been discharged. The trial court found that, whenever a landlord alleges rent arrears against a tenant, the landlord bears the burden of demonstrating the amount owed “to the last cent”, since that information lies within the landlord’s own possession; that PW1’s admitted failure to produce invoices, coupled with the absence of any breakdown of the claimed figure in either the witness statement or the Plaint, meant that this burden had not been discharged; that an adverse inference was warranted from the failure to adduce available and relevant evidence; and that the 1st Defendant’s general admission of indebtedness could not be treated as an admission of the specific sum of Kshs. 6,109,055.60. The claim for rent arrears was accordingly dismissed. 22.On the third issue, the trial court held that, since clause 6.5 of the lease entitled the 1st Defendant to remove the stalls he had erected only on expiry or earlier determination of the lease, and since the lease had not been determined – the Deed of Novation having merely substituted the 3rd Defendant as landlord with effect from 1st November 2021 while the lease itself continued in force the right to remove the materials, and the corresponding obligation on the landlord to permit this, had not yet accrued. The counterclaim was accordingly found to be premature and was dismissed. 23.The trial court entered judgment dismissing the Plaintiff’s claim for rent arrears of Kshs. 6,109,055.60; holding that the 3rd Defendant was not obligated to collect any rent arrears accruing prior to 1st November 2021; dismissing the 1st and 2nd Defendants’ counterclaim; and ordering that each party bear its own costs of the suit. The appeal 24.Aggrieved, the Appellant filed its Memorandum of Appeal dated 5th July 2024, raising five grounds, namely that the learned Magistrate erred in law and in fact: (i) in failing to find that the 1st and 2nd Respondents owed the Appellant rent arrears totalling Kshs. 6,109,055.60; (ii) in failing to find that the 3rd Respondent was obligated to collect the said rent arrears and remit the same to the Appellant; (iii) in failing to appreciate the totality of the evidence before him, thereby arriving at an erroneous decision; (iv) in failing to appreciate that the applicable standard of proof was on a balance of probabilities; and (v) that the decision was, in the circumstances, unjust. 25.The Appellant sought orders setting aside the judgment of the trial court; a declaration that the 1st and 2nd Respondents are jointly and severally liable to it for rent arrears of Kshs. 6,109,055.60; an order directing the 3rd Respondent to recover the said sum from the 1st and 2nd Respondents and remit it to the Appellant; interest on the said sum until payment in full; and costs of the appeal. 26.The Record of Appeal was compiled on 12th December 2025 and lodged thereafter, well over a year after the impugned judgment was delivered, without an accompanying certificate of delay. This was noted by the 1st and 2nd Respondents in their written submissions as a matter going to the propriety of the appeal, though no formal application was filed by either set of Respondents to strike out the appeal or the Record of Appeal on this account; both Respondents instead proceeded to engage fully with the merits. I address this briefly under the analysis that follows. Submissions by the parties (a) The Appellant’s Submissions 27.Counsel for the Appellant submitted that the 1st Respondent had admitted, on record, that he owed rent to the Appellant, and that his only dispute was as to the precise amount; that the letter dated 15th February 2021 demonstrated how the figure of Kshs. 6,109,055.60 was arrived at; and that, once the Appellant had adduced the lease and the demand letters, the evidential burden shifted to the 1st Respondent to prove a different figure by way of receipts or bank statements, which he failed to do, relying on Mbuthia Macharia v Annah Mutua Ndwiga & Another [2017] eKLR on the shifting of the evidential burden. 28.On the liability of the 3rd Respondent, counsel submitted that the Deed of Novation nowhere stated that the Appellant foreswore arrears accrued before the effective date, that the 3rd Respondent had merely disputed an obligation to collect the arrears without disputing the Appellant’s entitlement to them, and that the interpretation adopted by the trial court produced a “manifest absurdity” in which a landlord is left without his rent and a defaulting tenant escapes liability, relying on Smith v Cook (1891) AC 297 (as applied in Eldoret City Limited v Corn Products Kenya Ltd & Another [2013] eKLR) on giving deeds their natural meaning. 29.Counsel further submitted that the standard of proof in civil matters is on a balance of probabilities, that the Appellant had discharged this standard by tendering the lease and the demand correspondence, and that the trial court had imposed too exacting a standard by requiring production of itemised invoices before it could find the arrears proved. 30.On costs, counsel submitted that costs ought to follow the event, and that the 1st, 2nd and 3rd Respondents should bear the costs of the appeal. (b) The 1st and 2nd Respondents’ Submissions 31.Counsel for the 1st and 2nd Respondents submitted, first, that the appeal was filed out of time, the Record of Appeal having been lodged on 22nd December 2025, more than 1½ years after the judgment, without any certificate of delay to account for the lapse. 32.On the merits, counsel submitted that the 2nd Respondent, as a mere guarantor and not a party to the lease, could not be held liable absent proof of the 1st Respondent’s default to the figure pleaded, more so where (correcting the inadvertent reference in paragraph 6 of the defence) he was never notified by the Appellant of any breach before the lease was determined by the sale. On the quantum of arrears, counsel relied on the certified proceedings at what is recorded as page 613 of the Record of Appeal, where PW1 conceded under cross-examination that he had “not broken the figure in witness statement … not broken it on the Plaint … not produced the invoices because they were bulky”, and submitted that it was not open to the Appellant to throw a blanket figure before the court and demand payment without particularising it, citing sections 107 and 108 of the Evidence Act. 33.Counsel further relied on the trial court’s reliance on Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR and Ng’ang’a v Wangui & Another [2022] KEHC 10228 (KLR), to submit that the evidential burden never shifted to the 1st Respondent because the Appellant had not first discharged its legal burden of proving the specific quantum, and that the trial court was entitled to draw an adverse inference from the Appellant’s failure to call available evidence (the invoices) that it claimed existed. 34.On costs, counsel submitted that costs follow the event and ought to be awarded to the 1st and 2nd Respondents, and prayed that the appeal be dismissed and the judgment of the trial court upheld in its entirety. (c) The 3rd Respondent’s Submissions 35.Counsel for the 3rd Respondent set out the chronology of the dispute over the stakeholder sum of Kshs. 4,595,423.00 and submitted that the present appeal, in so far as it sought to re-open the question whether the 3rd Respondent was obligated to collect rent arrears accruing before 1st November 2021, was in truth a disguised attempt to appeal the Ruling of Hon. E.M. Kagoni dated 12th April 2022, which had conclusively determined that very question and which the Appellant had elected not to pursue on appeal, withdrawing the appeal it had lodged on 17th October 2022. Counsel relied on Ismail & Another v Otwala (Civil Appeal E067 of 2022) [2023] KEHC 27640 (KLR) and National Bank of Kenya Limited v Ndungu Njau [1997] eKLR for the proposition that a matter already canvassed and determined cannot be relitigated through the “back door”, whether by way of review or, as here, a fresh appeal against a subsequent judgment that merely applies the earlier, unchallenged ruling. 36.Counsel further submitted that, on a plain reading of the Deed of Novation, in particular clauses 1 and 8, the 3rd Respondent’s assumption of the Appellant’s rights, duties and obligations under the lease ran only “from and after” the effective date of 1st November 2021, being the date of registration of the transfer, and that the 3rd Respondent could not, as a matter of law, be made liable for obligations arising before that date, relying on National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & Another [2001] eKLR and Fidelity Commercial Bank Limited v Kenya Grange Vehicle Industries Limited [2017] eKLR for the principle that courts will not rewrite the bargain struck by contracting parties. 37.On costs, counsel submitted, relying on Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012; [2014] eKLR, that while costs ordinarily follow the event, the award remains a matter of judicial discretion, and prayed that the appeal be dismissed with costs to the 3rd Respondent. The duty of the first appellate court 38.This being a first appeal from a decision of a subordinate court, the duty of this court is well settled. As was stated in Abdul Hammed Saif v Ali Mohamed Sholan (1955) 22 EACA 270, and reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, an appeal of this nature proceeds by way of retrial, and this court must reconsider the evidence on record, evaluate it afresh, and reach its own independent conclusions, bearing in mind, however, that it has neither seen nor heard the witnesses, and making due allowance in that respect; this court will be slow to disturb findings of fact that turn on the credibility or demeanour of witnesses, but is not bound to follow the trial court’s findings where it appears that the trial court failed to take into account particular circumstances or probabilities material to its evaluation of the evidence. 39.I have approached the record before me, including the pleadings, the exhibits and the certified proceedings, with these principles in mind. Issues for determination 40.Arising from the grounds of appeal, the rival submissions and my own reading of the record, the issues that fall for determination are:(i)Whether the appeal, and in particular the Record of Appeal lodged on 22nd December 2025, is properly before this court;(ii)Whether the Appellant proved, on a balance of probabilities, that the 1st and 2nd Respondents owed it rent arrears in the sum of Kshs. 6,109,055.60, or any other ascertainable sum;(iii)Whether the 3rd Respondent was obligated to collect any such rent arrears from the 1st and 2nd Respondents and remit the same to the Appellant;(iv)Whether the trial court properly evaluated the totality of the evidence and applied the correct standard of proof; and(v)Who should bear the costs of the appeal. Analysis and determination (i) Competency of the appeal 41.It is correct, as pointed out by counsel for the 1st and 2nd Respondents, that the Record of Appeal was compiled on 12th December 2025 and lodged shortly thereafter, well over a year after the impugned judgment of 11th June 2024, and that it is unaccompanied by any certificate of delay explaining the lapse of time taken to procure copies of the proceedings and judgment. This is a matter that ordinarily attracts scrutiny, since timelines for instituting appeals from subordinate courts exist to bring finality to litigation and are not to be treated lightly. 42.However, no Notice of Motion was ever filed by either the 1st and 2nd Respondents or the 3rd Respondent seeking to strike out the appeal, or the Record of Appeal, on account of this delay; the point was raised for the first time, in passing, in written submissions filed in May 2026, by which stage both Respondents had themselves substantively engaged with, and fully argued, the merits of the appeal. It would not, in my view, accord with the interests of justice or with Article 159(2)(d) of the Constitution for this court to non-suit the Appellant on a point of pure procedure that was never the subject of a properly constituted application, affording the Appellant no opportunity to respond to it or to seek any indulgence the court might have been minded to grant. I accordingly decline to strike out the appeal on this ground, and proceed to determine it on its merits, while observing that counsel for the Appellant would have done well to explain, by way of a certificate of delay or otherwise, the considerable delay in lodging the Record of Appeal. (ii) Whether the Appellant proved the rent arrears claimed 43.The starting point is sections 107, 108 and 109 of the Evidence Act, which, taken together, place the legal burden of proving a fact in issue on the party who asserts it, and provide that this burden lies on the party who would fail if no evidence at all were adduced by either side. As the trial court correctly noted, and as is reaffirmed in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, this legal burden never shifts; what may shift, once the legal burden has been discharged, is an evidential burden requiring the opposing party to adduce evidence in rebuttal, failing which it risks an adverse finding. 44.The Appellant’s reliance on Mbuthia Macharia v Annah Mutua Ndwiga & Another [2017] eKLR for the proposition that the evidential burden shifted to the 1st Respondent once the lease and the demand letters were produced is, with respect, premature. That authority presupposes that the proponent of a claim has first discharged the initial legal burden of proving the fact asserted; it is not authority for the proposition that production of a lease agreement and correspondence referencing an unparticularised aggregate figure, without more, suffices to establish that figure as the true and accurate quantum of arrears outstanding as at a specific date. The evidential burden spoken of in that case is, in this sense, a “requisite response to an already-discharged” burden, and cannot be invoked to excuse the proponent’s own failure to particularise its claim. 45.I have examined the documentary evidence said to support the figure of Kshs. 6,109,055.60. The letter dated 15th February 2021 which the Appellant’s own submissions describe as the document that “clearly shows the breakdown” of the arrears in fact records an outstanding balance, as at 12th February 2021, of Kshs. 6,109,758.00, and sets out a structured repayment plan under which the February 2021 rent was to be cleared by 10th March 2021, leaving a balance of Kshs. 4,285,555.00 to be repaid in monthly instalments of Kshs. 200,000.00 from 28th February 2021, in addition to rent for March, April and May 2021 being secured by post-dated cheques. On the face of that letter, had even the agreed schedule been substantially honoured, the outstanding balance ought to have reduced materially below Kshs. 6.1 million well before November 2021. Yet the sum claimed as outstanding at the effective date of the novation, some nine months later, is Kshs. 6,109,055.60 a figure differing from the February 2021 balance by a mere Kshs. 702.40, and bearing no evident arithmetical relationship to the repayment schedule set out in that very letter. 46.No statement of account, ledger, invoice or other document bridging the period between February 2021 and November 2021 was placed before the trial court to explain how the arrears, having been the subject of an active repayment plan, came to stand at a figure so strikingly close to the February 2021 balance by the time of the sale. The letter dated 27th July 2021 records a further rent rebate and a reversion to the February 2021 repayment arrangement, but likewise does not state any updated outstanding balance. On my own and independent evaluation of this documentary record, as I am required to undertake as a first appellate court, I am unable to find that the letter of 15th February 2021, or any other document exhibited, in fact substantiates the figure of Kshs. 6,109,055.60 as the rent arrears outstanding on 1st November 2021. If anything, the absence of any reconciling document tends to undermine, rather than support, the reliability of the figure pleaded. 47.This difficulty is compounded by PW1’s own evidence. He conceded, without equivocation, that he had not broken down the figure of Kshs. 6,109,055.60 in either his witness statement or the Plaint, and that he had not produced any invoices because, in his words, they were “bulky”. A landlord who is the custodian of his own rent ledgers and accounts is uniquely placed to particularise, with precision, the sums he claims are outstanding; the explanation that supporting invoices were too voluminous to produce does not, without more such as a summary or schedule reconciling the underlying invoices to the claimed total discharge the burden the law places on him. I agree with the trial court that an adverse inference was properly drawn from this omission, applying the well-established principle that failure to adduce available and relevant evidence permits the court to infer that the evidence, had it been produced, would not have supported the party’s case. 48.As against this, the 1st Respondent’s admission in cross-examination “I owe but I have not agreed with the figure of the Plaintiff” was, correctly, treated by the trial court as an admission of indebtedness in some unparticularised amount, and not as an admission of the specific sum of Kshs. 6,109,055.60. An admission of liability in principle does not relieve a claimant of the burden of proving the quantum claimed, particularly where, as here, the defendant expressly disputes that quantum and asserts that his own reconciliation differs from the claimant’s. I find no error in the trial court’s treatment of this admission. 49.As regards the 2nd Respondent, who stood as guarantor and not as a party to the lease itself, the corrected version of paragraph 6 of the 1st and 2nd Respondents’ defence read, as counsel sought to have it read, as alleging that the 2nd Respondent was never notified by the Appellant (rather than by the 3rd Respondent, as inadvertently pleaded) of any breach before the lease was determined by the sale raises a question as to whether and when the guarantee was triggered. Given my finding below that the principal claim against the 1st Respondent for the specific sum of Kshs. 6,109,055.60 has not been proved, it is unnecessary, and would be premature, to make any determination on this distinct question concerning the 2nd Respondent’s liability as guarantor, and I decline to do so. 50.For these reasons, I find no merit in Ground 1 of the Memorandum of Appeal. The trial court correctly held that the Appellant had not discharged the burden of proving that the 1st and 2nd Respondents owed it rent arrears of Kshs. 6,109,055.60, and I decline to disturb that finding. (iii) Whether the 3rd Respondent was obligated to collect the arrears 51.Ground 2 of the appeal contends that the trial court erred in failing to find that the 3rd Respondent was obligated to collect the alleged rent arrears from the 1st and 2nd Respondents and remit the same to the Appellant. This ground falls away, in substantial part, on the finding I have already made: if the Appellant has not proved that any ascertainable sum of rent arrears was outstanding as at 1st November 2021, the question of who was obligated to collect such arrears does not arise for practical purposes. 52.I nonetheless address the point on its own footing, since it was fully argued. The trial court held that this very question had already been conclusively determined in the Ruling of Hon. E.M. Kagoni dated 12th April 2022, in proceedings to which the Appellant, the 1st Respondent (through the 2nd Defendant) and the 3rd Respondent were all parties, and that, the Appellant having withdrawn the appeal it lodged against that ruling, the trial court was functus officio and could not revisit the question. I agree. The Ruling of 12th April 2022 construed clauses 1 and 8 of the very same Deed of Novation now in issue, and arrived at the express finding that the 3rd Respondent’s assumption of the Appellant’s obligations ran only “from and after” the effective date of 1st November 2021, and that rental arrears accrued before that date “cannot be passed over to the 3rd Defendant”. That finding was never disturbed; the Appellant’s own appeal against it was withdrawn on 17th October 2022. To permit the Appellant to resurrect, in this appeal from the subsequent judgment, the very issue settled by that unchallenged interlocutory ruling, would be to permit an appeal against the Ruling of 12th April 2022 through the back door, a course this court will not countenance, applying the reasoning in Ismail & Another v Otwala (Civil Appeal E067 of 2022) [2023] KEHC 27640 (KLR) and in National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, both cited by counsel for the 3rd Respondent, to the effect that a matter already canvassed, contested and determined as between the parties cannot be relitigated by indirect means. 53.In any event, even approaching the question afresh, I reach the same conclusion as both Hon. Kagoni and Hon. Opande. Clause 1 of the Deed of Novation provides, in clear terms, that the 3rd Respondent, as Incoming Lessor, “accepts and agrees to assume, from and after the Effective Date, all of the [Exiting Lessor’s] rights, duties and obligations” under the lease. Clause 8 defines the Effective Date as the date of registration of the transfer, which, on the unchallenged evidence including the Appellant’s own pleaded admission and the testimony of DW3 was 1st November 2021. The words “from and after” are not ambiguous; they denote a wholly prospective assumption of obligations, and admit of no construction under which obligations or liabilities arising before that date are thereby transferred to the Incoming Lessor. To find otherwise would require this court to read into the Deed of Novation words that the parties did not use, and to rewrite, rather than interpret, a freely negotiated commercial bargain something courts are enjoined not to do: see National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & Another [2001] eKLR and Fidelity Commercial Bank Limited v Kenya Grange Vehicle Industries Limited [2017] eKLR, both cited by counsel for the 3rd Respondent, and both consistent with the long-settled principle that parties are bound by the bargain they have made, absent fraud, coercion or undue influence, none of which is pleaded or suggested here. 54.I am not persuaded by the Appellant’s submission that this construction produces a “manifest absurdity” leaving a landlord without recourse. The Deed of Novation did not extinguish the Appellant’s right, if any, to pursue the 1st and 2nd Respondents directly for arrears accrued before the effective date; it merely declined to transfer that right, or the corresponding burden of collection, to the 3rd Respondent. The Appellant’s difficulty in this suit arises not from any defect in the Deed of Novation, but from its own failure to substantiate, with adequate evidence, the quantum of arrears it says are owed to it by the 1st and 2nd Respondents directly, against whom its primary claim in any event lay. 55.Ground 2 of the appeal accordingly fails, both on the basis that the issue is not competently open for relitigation in this appeal, and, independently, on the merits of the construction of the Deed of Novation. (iv) Totality of the evidence and the standard of proof 56.Grounds 3, 4 and 5 of the appeal may be dealt with together, since they raise, in substance, a single complaint: that the trial court failed to appreciate the totality of the evidence, misapprehended the applicable standard of proof, and thereby arrived at an unjust decision. 57.Having myself re-evaluated the record, including the pleadings, the documentary exhibits and the certified proceedings, I am satisfied that the trial court correctly identified the applicable standard as proof on a balance of probabilities, and correctly applied it. The trial court did not, as the Appellant suggests, impose a heightened or criminal standard of proof; it found, on a balance of probabilities, that the evidence adduced an unparticularised aggregate figure, a demand letter whose own figures do not reconcile with the sum ultimately claimed, and a witness who conceded he had withheld supporting invoices simply did not establish, even on the lower civil standard, that the specific sum of Kshs. 6,109,055.60 was owed as at 1st November 2021. A balance of probabilities standard still requires a claimant to prove the essential elements, including quantum, of the claim advanced; it does not relieve a claimant of the obligation to particularise and substantiate the figure sued for. 58.Nor do I find that the trial court overlooked any material aspect of the evidence. It expressly considered the 1st Respondent’s admission of indebtedness, the demand correspondence, the terms of the lease and the Deed of Novation, and the earlier Ruling of Hon. Kagoni, and reached conclusions on each that are, in my independent assessment, sound and well supported by the record. Grounds 3, 4 and 5 accordingly also fail. (v) The counterclaim 59.The dismissal of the 1st and 2nd Respondents’ counterclaim was not appealed, and no Respondent has filed a cross-appeal seeking to disturb it. That finding accordingly stands undisturbed and does not require further comment, save to note that I have found nothing in the record to suggest that it was wrongly decided. (vi) Costs 60.Section 27 of the Civil Procedure Act vests this court with discretion as to costs, to be exercised judicially, the general rule being that costs follow the event: see Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012; [2014] eKLR. The Appellant has been unsuccessful on every ground of appeal advanced, and I see no reason in the circumstances of this case to depart from the general rule. The 1st, 2nd and 3rd Respondents, having successfully resisted the appeal, are entitled to their costs of the appeal. Disposition 61.For the foregoing reasons, I find no merit in any of the five grounds of the Memorandum of Appeal dated 5th July 2024. The upshot is that this appeal is dismissed, and the judgment of the Chief Magistrate’s Court at Nairobi, Milimani Commercial Courts (Hon. S.A. Opande, PM), delivered on 11th June 2024 in MCELC No. E508 of 2021, is upheld in its entirety. Accordingly, I make the following orders:i.The appeal is hereby dismissed in its entirety.ii.The judgment of the Chief Magistrate’s Court at Nairobi, Milimani Commercial Courts (Hon. S.A. Opande, PM), delivered on 11th June 2024 in MCELC No. E508 of 2021, is hereby upheld.iii.T he costs of this appeal are awarded to the 1st, 2nd and 3rd Respondents, to be borne by the Appellant.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18 TH DAY OF JUNE 2026. E.K. WABWOTO JUDGE In the presence of:Mr. Rubia for the Appellant.Mr. Kigen for the 1st and 2nd Respondents.Mr. Kimani for the 3rd Respondent.Court Assistants: Mary Ngoira and David Ngoosa.