Toroom & another v Calyx Redlimited (Environment and Land Appeal 11A of 2023) [2024] KEELC 6602 (KLR)
The bottom line
#A Kenyan court upheld a Tribunal order requiring a landlord to refund a tenant over KES 13 million in renovation costs, ruling the appeal had no merit.
What this practically means
#Executive summary
#Key legal issues
#Standard of review on a first appeal
The court must reconsider, evaluate and draw its own conclusions on the evidence without being bound by the trial court's findings, while making allowance for not having seen or heard the witnesses.
The court applied the Selle v Associated Motor Boat Company principles: a first appellate court reconsiders and re-evaluates the evidence, allows for the advantage the trial court had in observing witness demeanour, and makes its own independent findings. The judge applied this framework, deferring to the Tribunal's assessment of demeanour regarding the disputed tenancy agreements and the undocumented locus in quo visit.
Raising new issues only in written submissions
Issues not put to witnesses in cross-examination cannot be raised for the first time in written submissions.
The appellants argued the BQ figures were mere estimates and that receipts totalled only Kshs 1,794,206.55. The court held these matters were never put to the respondent's witnesses when they testified, so raising them abruptly in submissions deprived the witnesses of a chance to respond. The Tribunal was entitled to rely on the BQs and receipts as the only evidence before it.
Validity of receipts not in the respondent's name
Receipts in the names of a company's directors are valid evidence of renovation expenditure even without the company's name.
Oduor Henry John admitted the receipts did not bear the respondent's name but explained they were in the directors' names. The court held this was sufficient, finding the fourth ground of appeal not proved.
Locus in quo visit not applied for by parties
An undocumented locus in quo visit, possibly suo moto, cannot be faulted on appeal where nothing about it was documented.
The record did not show when the visit occurred or who requested it; it may have been suo moto. Since nothing at the locus was documented, the appellate judge deferred to the trial court's observations per Selle, trusting the presiding officer made good observations incorporated in the judgment.
Adequacy of the Tribunal's judgment
The Tribunal's judgment complied with Order 21 rule 4 of the Civil Procedure Rules.
The judgment contained a concise statement of the case, points for determination, the decision and the reasons, satisfying Order 21 rule 4. The Tribunal also correctly identified the two issues: which agreement was valid, and who should bear the renovation costs.
Assessment of costs at a capped figure
Capping of costs is accepted practice started by the Supreme Court, and the Kshs 250,000 award was, if anything, modest.
The court found no error in capping costs, noting the practice began with Raila 1 Presidential Election Petition (2013) and has taken root in Kenyan courts. Considering the subject matter and attendances, the amount was 'quite parsimonious' and would have been higher if assessed in the usual manner.
Legal principles established
#- On a first appeal, the court must reconsider and re-evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses
- A tribunal faced with contradictory evidence is entitled to believe one party over the other based on witness demeanour
- A party cannot raise an issue abruptly in written submissions when it was never put to the opposing witnesses during testimony
- Receipts in the names of a company's directors need not bear the company's name to be valid evidence
- Capping costs (as commenced in Raila 1 Presidential Election Petition 2013) is accepted practice in Kenyan courts
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The judgment of the Tribunal dated 25/5/2023 (refund of Kshs 13,555,132 renovation costs, payment of outstanding rent, and costs of Kshs 250,000) stands
- On appeal from
- Business Premises Rent Tribunal
- Jurisdiction invoked
- First appeal from the Business Premises Rent Tribunal (Cap 296 regime), heard by the court as stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Toroom & another v Calyx Redlimited (Environment and Land Appeal 11A of 2023) [2024] KEELC 6602 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6602/eng@2024-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.