https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3763

Muchemi (Administrator of the Estate of Eva Wangui Muchemi - Deceased) v Muthinja (Environment and Land Appeal E144 of 2024) [2026] KEELC 3763 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3763 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E144 of 2024 EK Wabwoto, J June 18, 2026 Between Wanjuki Muchemi (Administrator of the Estate of Eva Wangui Muchemi - Deceased) Appellant and Dr Moses Mwenda Muthinja Respondent (Being an appeal from the whole of the Judgment of Hon. A. Mukenga, Principal Magistrate, in the Chief Magistrate’s Court at Milimani, Nairobi, delivered on 30th August 2024 in Milimani Commercial Courts MCELC No. E336 of 2023) Judgment 1.This is a first appeal from the judgment of Hon. A. Mukenga, Principal Magistrate, delivered on 30th August 2024 in Milimani Commercial Courts MCELC No. E336 of 2023, in which the trial court entered judgment for the Plaintiff (now Appellant) against the Defendant (now Respondent) in the sum of Kshs. 858,728/=, against a pleaded claim of Kshs. 1,827,434.25/=, arising from a landlord and tenant dispute over rent arrears, the cost of repairs and redecoration, auctioneers’ fees, rent for the final month of occupation, and rent in lieu of notice. 2.Aggrieved by the whole of that judgment, the Appellant filed a Memorandum of Appeal dated 20th September 2024 raising nine grounds of appeal. The appeal was canvassed by way of written submissions, namely the Appellant’s submissions dated 12th May 2026 and the Respondent’s submissions dated 9th June 2026. 3.The Appellant, Wanjuki Muchemi, sues as the administrator of the estate of Eva Wangui Muchemi (Deceased), the landlord of House No. 790, Block 4-65, Madaraka Estate, Nairobi (the suit premises). The Respondent, Dr. Moses Mwenda Muthinja, was the tenant of the suit premises under a written tenancy agreement dated 1st February 2014, at an initial monthly rent of Kshs. 40,000/=, escalating at the rate of 5% per annum. Clause 14 of the tenancy agreement required two months’ written notice of intention to terminate the tenancy, or payment of two months’ rent in lieu of notice. Clauses 9, 10 and 16 of the agreement obliged the tenant to keep the interior of the premises in good and tenantable condition and to make good any damage occasioned by his own default, save for fair wear and tear or construction defects, and to hand over the premises at the expiry of the tenancy in the same condition as at its commencement, normal wear and tear excepted, repairing and painting the premises before vacating. 4.It is not in dispute that the Respondent fell into rent arrears during the subsistence of the tenancy, occasioned in part by delays in the payment of his salary by his employer, and that the Plaintiff accommodated him from time to time. The Respondent vacated the suit premises in March 2022 after his household goods and motor vehicle registration number KCX 378S were proclaimed by auctioneers instructed by the Plaintiff to levy distress for the outstanding rent. The Respondent did not redeem the household goods but was permitted to sell the motor vehicle by private treaty, realizing Kshs. 400,000/= which was credited towards the arrears. 5.By a Plaint dated 31st July 2023, the Plaintiff sought judgment against the Defendant for Kshs. 1,827,434.25/=, made up as follows:(i)Rent arrears – Kshs. 1,469,868.75(ii)Cost of repairs and redecoration – Kshs. 207,080.00(iii)Auctioneers’ fees – Kshs. 32,290.00(iv)Rent for March 2022 – Kshs. 59,097.75(v)One month’s rent in lieu of notice – Kshs. 59,097.75 together with general damages, costs and interest. 6.By a Statement of Defence dated 6th November 2023, the Defendant admitted the tenancy but disputed the sum claimed. He pleaded that, by a letter dated 5th October 2020, he had submitted a rent reconciliation to the Plaintiff showing arrears as at that date of Kshs. 1,103,643/=; that further rent had since accrued from November 2020 to March 2022 in the sum of Kshs. 954,416/=; that he had made payments totaling Kshs. 1,370,000/= during that period; and that, after adding admitted costs of painting (Kshs. 33,000/=) and carpentry (Kshs. 45,950/=), the net sum owing was Kshs. 767,009/=, and not the sum claimed. 7.At the trial, the Plaintiff testified through PW1 (Wanjuki Muchemi) and PW2 (Susan Kahembe, his personal assistant), the latter having prepared a rent analysis schedule dated 20th March 2024 said to capture all rent due and paid from 2014 to 2022. In cross-examination, however, PW2 conceded that the schedule did not reflect the true position, as certain payments made by the Defendant had not been factored into it. The Defendant testified as DW1, and his wife, Dorris Muchemi Mwenda, testified as DW2, producing evidence of certain payments said to have been made, including a bank transfer slip for Kshs. 40,000/= that was not stamped by the issuing bank and was unsupported by any bank statement. 8.In its judgment, the trial court declined to rely on either party’s schedule, finding that the Plaintiff’s schedule did not reflect the true position and that the Defendant’s own figures were similarly inconsistent across his pleadings and witness statement. Instead, the trial court undertook its own independent analysis of the parties’ correspondence, principally the Defendant’s letter of 5th October 2020 found to be the most reliable record of the rent position as at that date, showing arrears of Kshs. 1,489,590/= payable in eight instalments and the Plaintiff’s letter of 1st July 2021 confirming that the Defendant had settled six of the eight instalments, leaving Kshs. 689,590/= outstanding as at May 2021. Adding rent accruing from June 2021 to March 2022 Kshs. 568,468/= to that balance, and deducting further payments made in the same period Kshs. 572,000/=, inclusive of the Kshs. 400,000/= realized from the sale of the motor vehicle, the trial court arrived at a finding of rent arrears owing in the sum of Kshs. 686,058/=. 9.On the cost of repairs and redecoration, the trial court found that the Defendant had produced no contrary quotation to challenge the Plaintiff’s documented quotations for electrical, plumbing and carpentry works, and, taking into account the Defendant’s own concession as to the cost of painting Kshs. 33,000/=, awarded a total of Kshs. 172,670/= under this head, against the Kshs. 207,080/= claimed. 10.The trial court dismissed the claim for auctioneers’ fees of Kshs. 32,290/=, finding that the auctioneers’ letter seeking settlement of their charges did not quantify the sum claimed, and the claim was therefore unproved. The trial court likewise dismissed the claim for one month’s rent in lieu of notice, holding that, the Respondent having been distressed for rent and left in occupation, no notice was due, and that distress for rent was not an eviction process. 11.The trial court accordingly entered judgment for the Plaintiff in the sum of Kshs. 858,728/= (being Kshs. 686,058/= for rent arrears and Kshs. 172,670/= for repairs and redecoration), together with the costs of the suit and interest thereon at court rates from the date of judgment until payment in full. Grounds of appeal 12.The Memorandum of Appeal dated 20th September 2024 raises nine grounds, which, in line with the manner in which they were argued, may conveniently be grouped as follows:(a)Grounds 1, 2, 3, 5 and 8, that the trial court erred in disregarding the parties’ pleadings and the Respondent’s admission of Kshs. 767,009/= in his defence, in disregarding the Appellant’s evidence, and in failing to review the whole of the evidence on record, resulting in an erroneous finding on the rent arrears due;(b)Ground 4, that the trial court erred in holding that the Respondent, having been distressed for rent, was under no obligation to give notice, distress for rent not being an eviction process, and the Respondent having remained in occupation after the distress;(c)Ground 6, that the trial court erred in awarding a sum for repairs and redecoration less than the cost of works quoted and incurred;(d)Ground 7, that the trial court erred in disallowing the auctioneers’ costs despite the Respondent’s admission that the motor vehicle was sold by private treaty after attachment, entitling the auctioneer to a reasonable commission; and(e)Ground 9, that the trial court erred in directing that interest run from the date of judgment, rather than from the date of filing suit, in respect of what is a liquidated claim. Submissions 13.The Appellant submits that this being a first appeal, the Court is obliged to reconsider the evidence and reach its own conclusions, relying on Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR. She contends that the Respondent having admitted owing Kshs. 767,009/= in his defence, the trial court was bound to hold him to that admission, and that any evidence at variance with that pleaded position, including the lower figure of Kshs. 66,805.50 advanced in his witness statement, ought to have been disregarded, citing Joseph Mbuta Nziu v Kenya Orient Co. Ltd [2015] eKLR, which in turn applied the Nigerian Supreme Court’s decision in Adetoun Oladeti Ltd v Nigeria Breweries Plc, S.C. 91/2002. On notice, the Appellant submits that distress for rent is not an eviction process, that the Respondent remained free to stay upon regularizing his rent, and that he was bound by clause 14 of the tenancy agreement to give two months’ notice before vacating, of which only one month is claimed. On repairs, she submits that the trial court erred in awarding labour costs for painting without a corresponding award for the cost of materials. On auctioneers’ fees, she submits that the Respondent’s consent to a private sale of the motor vehicle did not extinguish the auctioneer’s entitlement to a reasonable commission. On interest, she submits that this is a liquidated claim and that interest ought to run from the date of filing suit, relying on South Nyanza Sugar Co. Ltd v Rehema Joseph Nkonya, Migori High Court Civil Appeal No. 74 of 2018, which applied John Richard Okuku Oloo v South Nyanza Sugar Co. Ltd, Court of Appeal at Kisumu, Civil Appeal No. 278 of 2010 [2013] eKLR. 14.The Respondent opposes the appeal in its entirety. He submits that the trial court reached its findings after a comprehensive evaluation of the evidence, including the cross-examination of PW2, who herself conceded that the Plaintiff’s schedule did not reflect the true position; that the trial court was accordingly entitled, and indeed obliged, to undertake its own independent analysis rather than be bound by either party’s figures; that no evidence was led quantifying the auctioneers’ fees claimed, and the claim was correctly dismissed for want of proof; that the Appellant did not prove the cost of materials for the repairs claimed beyond what was awarded; and that the award of interest is a discretionary matter under section 26(1) of the Civil Procedure Act, which the trial court exercised judicially and which this Court should not disturb, relying on Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR. Analysis and determination 15.This being a first appeal, this Court is under a duty to reconsider the evidence on record, evaluate it afresh and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses and should make due allowance in that respect: Selle v Associated Motor Boat Co. Ltd [1968] EA 123; Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR. 16.Having considered the record, the grounds of appeal and the rival submissions, I find that the following five issues arise for determination:(a)whether the trial court erred in its determination of the rent arrears owing;(b)whether the trial court erred in the quantum awarded for repairs and redecoration;(c)whether the trial court erred in dismissing the claim for auctioneers’ fees;(d)whether the trial court erred in dismissing the claim for one month’s rent in lieu of notice; and(e)whether the trial court erred in directing that interest run from the date of judgment rather than the date of filing suit. (a) Rent arrears (Grounds 1, 2, 3, 5 and 8) 17.It is well established, and not in dispute, that parties are generally bound by their pleadings, and that evidence at variance with a party’s own pleaded case ordinarily goes to no issue: Joseph Mbuta Nziu v Kenya Orient Co. Ltd [2015] eKLR. The difficulty with the Appellant’s reliance on that principle here is that it is the Appellant’s own schedule, not the Respondent’s pleaded admission, that was discredited at trial: PW2, who prepared it, conceded in cross-examination that it did not reflect the true position and omitted payments actually made by the Respondent. The trial court was therefore correct, and indeed bound by section 107 and 109 of the Evidence Act, not to accept that schedule as proof of the rent arrears claimed, and to undertake its own assessment of the primary documents, namely the correspondence exchanged between the parties. 18.Nor is it accurate to say that the trial court disregarded the Respondent’s admission. A comparison of the figures demonstrates the contrary. The Respondent’s admitted sum of Kshs. 767,009/= was itself a composite figure, comprising both rent arrears and the admitted costs of painting (Kshs. 33,000/=) and carpentry (Kshs. 45,950/=), together Kshs. 78,950/=. The rent-only component of that admission was therefore Kshs. 688,059/= (767,009 less 78,950). The trial court’s independent finding on rent arrears, Kshs. 686,058/=, is within Kshs. 2,001/= of that admitted rent-only figure, a variance of less than half of one per cent. On repairs, far from disregarding the Respondent’s position to the Appellant’s prejudice, the trial court awarded Kshs. 172,670/=, more than double the Kshs. 78,950/= the Respondent had admitted under that head. The aggregate sum awarded by the trial court, Kshs. 858,728/=, in fact exceeds the Respondent’s own pleaded admission of Kshs. 767,009/= by Kshs. 91,719/=. The premise underlying Grounds 1, 2, 3, 5 and 8, that the trial court’s independent analysis disadvantaged the Appellant by departing from the Respondent’s admission, is accordingly not borne out by the record; if anything, the trial court’s approach was more generous to the Appellant than the bare admission would have yielded. 19.I find no basis to disturb the trial court’s finding on rent arrears. The trial court correctly declined to treat either party’s self-serving schedule as conclusive, and instead grounded its finding in the primary correspondence exchanged between the parties, which was the more reliable evidential basis available. Grounds 1, 2, 3, 5 and 8 of the appeal accordingly fail. (b) Repairs and redecoration (Ground 6) 20.The Plaint pleaded the cost of repairs and redecoration at Kshs. 207,080/=, said to have been jointly assessed on inspection. At trial, however, the only itemized and undisputed documentary evidence of the cost of works was the Plaintiff’s own quotation letter of 18th March 2022, which particularized the cost of electrical, plumbing and carpentry works, to which the trial court added the Defendant’s conceded cost of painting (Kshs. 33,000/=), arriving at a total of Kshs. 172,670/=. Special damages, such as the cost of repairs, must be specifically pleaded and strictly proved; a claimant cannot fall back on an undifferentiated, unparticularized joint-assessment figure where a later, itemized quotation forming part of the evidentiary record yields a different, lower sum. The Appellant has not pointed to any specific, proven quotation for the cost of materials said to be missing from the painting component, distinct from the labour cost of Kshs. 33,000/= conceded by the Respondent. The burden of proving that additional cost lay on the Appellant, and was not discharged. I find no error in the trial court’s award under this head. Ground 6 fails. (c) Auctioneers’ fees (Ground 7) 21.Even accepting, as the Appellant submits, that an auctioneer who facilitates a private sale of attached property at the instance and with the consent of the party who consigned it for sale may in principle be entitled to a commission, the quantum of that commission remains a matter requiring proof, whether by an invoice, a fee note, or computation by reference to the applicable schedule of auctioneers’ charges. The only document relied upon, the auctioneers’ letter seeking settlement of their charges, did not quantify the sum said to be due. A bare assertion of entitlement to a “reasonable commission”, unaccompanied by any computation or documentary proof of the sum actually claimed, cannot found an award of special damages. The trial court’s dismissal of this head for want of proof was correct. Ground 7 fails. (d) Rent in lieu of notice (Ground 4) 22.I respectfully take a different view from the trial court on this ground. Distress for rent is a self-help remedy available to a landlord to recover arrears by attaching the tenant’s property; it is not, without more, a termination of the tenancy by the landlord, and a tenant who is distressed upon and who settles or otherwise regularizes the arrears ordinarily remains entitled to continue in occupation. That, however, is a different question from whether the tenant who elects to vacate has discharged his own independent contractual obligation, under clause 14 of the tenancy agreement, to give two months’ written notice of his intention to terminate the tenancy, or to pay two months’ rent in lieu of such notice. The trial court’s reasoning, that no notice was due because the distress was not an eviction, answered a question that was not in issue; what mattered was whether the Respondent, who on his own evidence and correspondence vacated the suit premises in March 2022 of his own decision, had given the contractually required notice before doing so. On the record, he did not. I find that the Appellant proved her entitlement to rent in lieu of notice. She claimed only one month’s rent under this head, Kshs. 59,097.75/=, by her own account one month short of the full two months due under the agreement. I allow Ground 4 and find the Appellant entitled to the further sum of Kshs. 59,097.75/=. (e) Interest (Ground 9) 23.Section 26(1) of the Civil Procedure Act confers on the court a discretion as to the rate and commencement date of interest on a decretal sum, but that discretion must be exercised judicially and in accordance with established principle. Where a claim is for a liquidated or ascertained sum, such as rent arrears due under a tenancy, the consistent line of authority is that interest ought ordinarily to run from the date of filing suit, the rationale being that the defendant has had the use of the plaintiff’s money throughout that period, and interest is the plaintiff’s sole consolation for that loss of use: John RichardOkuku Oloo v South Nyanza Sugar Co. Ltd, Court of Appeal at Kisumu, Civil Appeal No. 278 of 2010 [2013] eKLR, as applied in South Nyanza Sugar Co. Ltd v Rehema Joseph Nkonya, Migori High Court Civil Appeal No. 74 of 2018. No special circumstance was pleaded or proved before the trial court to justify a departure from that ordinary rule, and none has been shown on appeal. I find that the trial court’s direction that interest run only from the date of judgment, rather than from the date of filing suit, was an error in the exercise of its discretion. Ground 9 succeeds. 24.It follows that the aggregate sum found due to the Appellant, comprising the Kshs. 858,728/= awarded by the trial court and the further Kshs. 59,097.75/= awarded under Ground 4, namely Kshs. 917,825.75/=, shall attract interest at court rates from the date of filing suit, 31st July 2023, until payment in full. (f) Costs of the appeal 25.The appeal has succeeded only on two of the nine grounds raised, and on the comparatively minor of the two principal sums in contention. In those circumstances, and exercising the discretion this Court has as to costs, I consider it just that each party bear its own costs of this appeal. Final orders 26.For the foregoing reasons, I make the following final orders:i.The appeal partly succeeds.ii.The Respondent shall additionally pay to the Appellant the sum of Kshs. 59,097.75/= being one month’s rent in lieu of notice.iii.The aggregate decretal sum of Kshs. 917,825.75/= (being Kshs. 858,728/= awarded by the trial court and Kshs. 59,097.75/= awarded herein) shall attract interest at court rates from the date of filing suit, 31st July 2023, until payment in full, in substitution for the trial court’s order that interest run from the date of judgment.iv.Each party shall bear its own costs of this appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026.E.K. WABWOTOJUDGEIn the presence of:Mr. Mwenda Guantai for the Appellant.Mr. Obonyo for the Respondent.Court Assistants; Mary Ngoira and David Ngoosa.