Gisaga v Kiruja (Environment and Land Appeal E008 of 2023) [2024] KEELC 6325 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal denied the appellant a fair hearing by relying on an assessment conducted on a weekend without his involvement
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.
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.
Whether the tenancy agreement was in writing and what rent was payable
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/=.
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.
Whether the Tribunal erred in awarding the respondent Kshs. 1,650,000/= for renovations
No. Renovations were not disputed, the rent assessor confirmed major renovations, and the respondent proved the cost on a balance of probabilities.
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.
Whether the Tribunal was biased
No evidence of bias was proved by the appellant.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.