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ELCDismissedBusiness Premises Rent Tribunal Appeal No. 137 of 1992 (Meru) - Appeal from Nairobi Business Rent Tribunal· [2018] KEELC 3833 (KLR)

Leonard Kimeu Mwanthi v F.M. Imanene & another [2018] KEELC 3833 (KLR)

Environment and Land Court
16 February 2018
3,565 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a tenant's 25-year-old rent appeal because he couldn't produce bank statements proving he actually paid the rent.

What this practically means

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Executive summary

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This is a first appeal against the decision of the Business Premises Rent Tribunal (Chairman Kanyotu) delivered on 15/10/1993, allowing the Landlords to levy distress for rent arrears of Kshs. 205,000/= plus costs of Kshs. 10,000/=. The Appellant, who was the Defendant before the Tribunal, originally raised four grounds: that the Tribunal erred in finding arrears of Kshs. 205,000/=, in giving no credit for payments, in finding no rent had been paid since 1988, and that the Respondents and Court brokers wrongfully closed the premises. Pursuant to leave granted on 29/10/2015, the Appellant filed an Amended Memorandum of Appeal with nine grounds, contending inter alia that the actual tenant was Meru Medical Stores Co. Ltd, a separate corporate entity, and sought to introduce additional evidence including a certificate of incorporation, cheques and orders from a related case. The court found that the Appellant admitted paying rent through the Landlord's bank account but produced only a schedule of payments without bank statements or banking slips proving the payments, and that the burden of proving payment lay on the tenant. The court declined to evaluate the new evidence or the new grounds, holding that an appellate court cannot sit as a trial court and that evidence not tested by cross-examination before the Tribunal was inadmissible, applying the Ladd v Marshall principles. The additional evidence and the Amended Memorandum of Appeal were rejected as inadmissible, and the appeal was dismissed with costs to the Respondent, the Appellant also to bear the costs of the Tribunal case.

Key legal issues

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01

Proof of payment of rent arrears

Holding

The Tribunal was right to find the tenant in arrears because the Appellant produced only a schedule of payments without bank statements proving the payments went through the Landlord's account

Reasoning

The Appellant claimed payments were made into the Landlord's bank account and produced a schedule (D. Exhibit No. 3), but produced no bank statement or banking slips showing the payments were credited to the Respondent's account. Since the tenant admitted paying through the bank account, the burden of producing records of those payments was incumbent on him and could not shift to the Landlord.

p. 4
02

Admissibility of additional evidence and new grounds on appeal

Holding

The additional evidence and the Amended Memorandum of Appeal raising new issues were rejected as inadmissible because they were not canvassed before the Tribunal and were not subjected to cross-examination

Reasoning

The court, as an appellate tribunal, cannot sit as a trial court and can only evaluate evidence that was before the trial court. Relying on Ladd v Marshall as adopted in Tarmohemed v Lakhani and Wanjie v Sakwa, the court held that fresh evidence must be admissible only where it could not with reasonable diligence have been obtained at trial, and the power to admit it must be exercised sparingly so as not to allow a party to patch up weak points or make out a fresh case on appeal.

p. 4
03

Complaint against closing of premises by Court brokers

Holding

Ground 4 of the appeal failed; the remedy for alleged breach by Court brokers lies in another forum

Reasoning

The premises were closed pursuant to leave granted by the Court to levy distress. Court brokers are not parties to the appeal, and if they contravened the law in the course of executing court orders they can be dealt with in another forum. The breach of professional duties by non-parties was not a serious ground of appeal.

p. 4

Legal principles established

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  • An appellate court exercises its jurisdiction to review the evidence of the trial court with caution, interfering only where there is no evidence to support a conclusion, the trial judge has failed to appreciate the weight of circumstances, or has plainly gone wrong
  • The burden of proving payment of rent lies on the tenant who alleges that payments were made
  • A schedule of record of payments without corresponding bank statements is not proof of payment; a bank statement is prima facie evidence of payment
  • Appellate courts are reluctant to admit additional evidence on appeal except in exceptional circumstances, per the Ladd v Marshall conditions

Court orders

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  1. 1.The additional evidence adduced by the Appellant was rejected as inadmissible documents in this case
  2. 2.The Amended Memorandum of Appeal was rejected
  3. 3.The Appeal was dismissed with costs to the Respondent
  4. 4.The costs of the Tribunal case to be borne by the Appellant

Authorities

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Legislation

  • Business Premises Rent Tribunal Act (Cap 301 Laws of Kenya)Not specified
  • Distress for Rent Act (Cap 293 Laws of Kenya)Not specified
  • Court of Appeal RulesRule 29

Cases cited (5)

  • PETERS VS SUNDAY POST LIMITED
    [1958] EA 424
  • FIBRE LINK LIMITED –VS- STAR TELEVISION PRODUCTION LIMITED
    [2015] eKLR
  • TARMOHEMED & ANOTHER –VS- LAKHANI & CO.
    [1958] EA 567
  • LADD –vs- MARSHALL
    [1954] (WLR) 1489
  • WANJIE & OTHERS –VS- SAKWA & OTHERS
    [1984] KLR 275
On appeal from
Business Premises Rent Tribunal (Nairobi Business Rent Tribunal case No. 137 of 1992, Meru)
137 of 1992
Jurisdiction invoked
First appellate jurisdiction over Business Premises Rent Tribunal decisions

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Leonard Kimeu Mwanthi v F.M. Imanene & another [2018] KEELC 3833 (KLR)", Case Analysis (2018). Business Premises Rent Tribunal Appeal No. 137 of 1992 (Meru) - Appeal from Nairobi Business Rent Tribunal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3833/eng@2018-02-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.