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ELCDismissedCivil Appeal E014 of 2021· [2024] KEELC 6325 (KLR)

Gisaga v Kiruja (Environment and Land Appeal E008 of 2023) [2024] KEELC 6325 (KLR)

Environment and Land Court
25 September 2024
4,993 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Chuka from the judgment of Hon. P. May (Vice Chair) of the Business Premises Rent Tribunal delivered on 3rd March 2023 in BPRT Case No. 47 of 2020 (Meru) consolidated with Case No. 21 of 2021. The appellant landlord and the respondent tenant each filed references before the Tribunal which were consolidated; the Tribunal found for the tenant, awarding her Kshs. 1,650,000/= as refund of renovation costs, Kshs. 112,000/= unutilised rent, refunds of rent paid for January to August 2022, release of tribunal deposits, utility bills to be settled by the landlord, and costs of Kshs. 175,000/=. The landlord appealed on numerous grounds, principally that the Tribunal relied on a rent assessor's report procured without his participation on a weekend, that the renovation invoices related to Marine Park rather than his premises, and that the respondent failed to produce county approvals and bills of quantities. C.K. Yano J framed two issues: whether the Tribunal's decision was against the weight of the evidence and law, and whether the appeal was merited. The court held the assessment was conducted in the presence of both parties so none was condemned unheard; the written tenancy agreement was proved and rent was Kshs. 16,000/=; the respondent proved the renovations and their cost on a balance of probabilities; and no bias was proved. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the Tribunal denied the appellant a fair hearing by relying on an assessment conducted on a weekend without his involvement

Holding

No. The assessment was conducted in the presence of both parties and their representatives; the appellant, though present, raised no objection and suffered no prejudice.

Reasoning

The court perused the assessor's report and noted that the assessor was accompanied by both parties and their representatives including the respondent's advocate. The appellant was present at the site visit and did not object to the date. No prejudice was demonstrated from the assessment occurring on a weekend rather than the agreed working day, and the findings would have been the same irrespective of the day.

p. 8
02

Whether the tenancy agreement was in writing and what rent was payable

Holding

The agreement was in writing, since the appellant admitted the signature was similar to his; monthly rent payable was Kshs. 16,000/= as per the agreement, not Kshs. 27,000/=.

Reasoning

Though the appellant disputed the agreement claiming a 'gentleman' agreement, on cross-examination he admitted the signature was similar to his, making the written agreement more probable. The written agreement fixed rent at Kshs. 16,000/=, and the court adopted that figure, affirming the Tribunal's finding.

p. 8
03

Whether the Tribunal erred in awarding the respondent Kshs. 1,650,000/= for renovations

Holding

No. Renovations were not disputed, the rent assessor confirmed major renovations, and the respondent proved the cost on a balance of probabilities.

Reasoning

It was not in dispute that the respondent carried out renovations during the tenancy. The rent assessor's report confirmed major renovations. The Tribunal's conclusion that the appellant was not convincing in alleging he carried out the renovations himself was correct, and the appellant failed to discharge the burden of proving the amount was exaggerated.

p. 8
04

Whether the Tribunal was biased

Holding

No evidence of bias was proved by the appellant.

Reasoning

The appellant alleged bias on the part of the Tribunal and the assessor, but the court, having perused the material on record, found no evidence of bias and held that none had been proved. Allegations of bias required proof by the party asserting them.

p. 8

Legal principles established

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  • On a first appeal, the court has a duty to reconsider and evaluate the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses
  • A party is not condemned unheard where an assessment or site visit is conducted in the presence of all parties and their representatives
  • Renovations and their cost are proved on a balance of probabilities; the landlord's bare allegation of exaggeration without evidence does not displace the tenant's proof

Court orders

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  1. 1.The appellant's appeal is dismissed with costs to the respondent
On appeal from
Business Premises Rent Tribunal
BPRT Case No. 47 of 2020 (Meru) consolidated with Case No. 21 of 2021
Jurisdiction invoked
First appeal from the Business Premises Rent Tribunal under the Landlord & Tenant (Shops, Hotels & Catering Establishments) Act

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, "Gisaga v Kiruja (Environment and Land Appeal E008 of 2023) [2024] KEELC 6325 (KLR)", Case Analysis (2024). Civil Appeal E014 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6325/eng@2024-09-25

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