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ELCDismissedNot stated in the judgment· [2018] KEELC 4345 (KLR)

Ngunjiri Wahome v Kiyu Grade Cattle Buying Self Help Group [2018] KEELC 4345 (KLR)

High Court of Kenya at Nyeri (first appellate court over the Rent Restriction Tribunal)
19 February 2018
LWL N Waithaka
2,893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court upheld a landlord's eviction of a tenant in rent arrears, confirming that appeal courts rarely overturn a tribunal's factual findings.

What this practically means

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Executive summary

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The respondent landlord served the appellant tenant with a notice of termination of tenancy dated 24th July, 2008 on the ground of persistent rent default from December 2006 amounting to Kshs.12,960/-. The appellant lodged a complaint before the Rent Restriction Tribunal claiming Kshs.32,120/- for developments on Plot No. 16B Witima Market (steel doors, burglar-proof windows, timber ceiling, cement and water) and seeking refund or conversion into rent. The Tribunal heard evidence from both sides, found the tenant and his mother dishonest witnesses, held that the cost of the burglar-proof doors and windows (Kshs.4,143/-) had already been offset from rent, and found rent in arrears since December 2006. It allowed the notice, terminated the tenancy with effect from 1st April 2009, permitted distress for rent under section 12(1)(h), and awarded costs to the landlord. On appeal, the appellant argued the Tribunal erred in rejecting his evidence and claims of expenditure on the premises. The court, applying the settled principles in Mwanasokoni v Kenya Bus Services and Peters v Sunday Post Ltd on the duty of a first appellate court, found no material showing the Tribunal's factual findings were based on no evidence, a misapprehension of the evidence, or wrong principles. The Tribunal's findings, including its adverse credibility findings based on the parties' demeanour, were left undisturbed. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Duty of a first appellate court on re-evaluation of evidence

Holding

The court has power to examine and re-evaluate the evidence but will only interfere with findings of fact based on no evidence, misapprehension of evidence or wrong principles

Reasoning

Relying on Mwanasokoni v Kenya Bus Services and Peters v Sunday Post Ltd, the court held that an appellate court should exercise its re-evaluation jurisdiction with caution. The appellant failed to show any of the recognised grounds for disturbing the Tribunal's factual findings on expenditure and on the credibility of the appellant and his mother.

p. 4
02

Whether the Tribunal erred in finding the respondent proved rent default justifying termination

Holding

No error was shown: the Tribunal's findings that expenses were offset from rent and that rent was in arrears from December 2006 were supported by the exhibits and the demeanour findings

Reasoning

The Tribunal found on the minutes and receipts that the cost of the burglar-proof doors and windows (Kshs.4,143/-) had been offset at a monthly rate, and disbelieved the tenant's evidence as a pack of lies. The appellate court found no basis to disturb those findings of fact and credibility.

p. 3

Legal principles established

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  • A first appellate court will not interfere with a trial court's finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or the trial judge demonstrably acted on wrong principles
  • The duty of a first appellate court is to examine and re-evaluate the evidence, though it will not lightly differ from the trial court on findings of fact

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Rent Restriction Act, Cap 296Section 14(1)(a)
  • Rent Restriction Act, Cap 296Section 15
  • Rent Restriction Act, Cap 296Section 12(1)(h)

Cases cited (5)

  • De Fransesco vs. Barnum
    (1980) 45 Ch.D
  • Communication Workers Union of Kenya v. Telkom (K) Ltd and 2 others
    (2006) eKLR
  • Mwanasokoni v Kenya Bus Services Limited
    (Mombasa) Civil Appeal No. 35 of 1985 (ur)
  • Peters v Sunday Post Ltd
    (1958) EA 424
  • Ephantus Mwangi & Another v Wambugu
    (1983/84) 2 KCA 100 at page 118
On appeal from
Rent Restriction Tribunal
Not stated
Jurisdiction invoked
First appeal from the Rent Restriction Tribunal (Rent Restriction Act, Cap 296)

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, "Ngunjiri Wahome v Kiyu Grade Cattle Buying Self Help Group [2018] KEELC 4345 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4345/eng@2018-02-19

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