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ELCDismissedAppeal from Chief Magistrates Court at Nanyuki CMCCE005/2020· [2025] KEELC 3564 (KLR)

Chege t/a Trendz Bar & Restaurant v Mwatha (Environment and Land Appeal E003 of 2023) [2025] KEELC 3564 (KLR)

High Court of Kenya
7 May 2025
2,882 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Nanyuki dismissed a bar owner's appeal, confirming her eviction for unpaid rent was lawful and warning litigants not to sleep on their cases.

What this practically means

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Executive summary

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The appellant, the plaintiff before the trial court, sued over a five-year lease of plots Nanyuki/Municipality Block 9/100 and 9/101 dated 18.6.2019, claiming it was illegally evicted on 29.9.2020 and seeking permanent injunctions restraining the respondent from dealing with the premises and structures known as Trendz Bar and Restaurant. The respondent defended and counterclaimed for Kshs. 972,932 in rent arrears and Kshs. 96,289 in unpaid water bills. On 21.2.2023 the Chief Magistrates Court at Nanyuki dismissed the suit, awarded the counterclaim amounts, costs and interest. The appellant appealed, contending the ex parte proceedings and judgment should be set aside, that the eviction was illegal and contrary to public policy, that notices were never issued, that the burden of proof was not discharged, and that the auctioneers failed to render accounts. Mbugua J, sitting as a first appellate court, applied Selle v Associated Motor Boat Co and reconsidered the evidence. The court held the trial was fair: the appellant's counsel attended on 18.1.2022 when a hearing date was fixed, the appellant then went into slumber, and the firm on record, not an individual counsel, conducted the matter. The eviction was proper because the appellant breached the lease by not paying rent despite a demand notice of 23.6.2020, and courts do not rewrite contracts. The respondent discharged the burden of proof on a balance of probabilities. Claims over structures and auctioneers' accounts were unpleaded and new on appeal, and the court declined to entertain them. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Fairness of the ex parte trial and refusal to set aside the proceedings

Holding

The trial was fair; the appellant's counsel appeared on 18.1.2022 when a hearing date was taken, and no sufficient explanation was given for non-attendance

Reasoning

The appellant was represented on 18.1.2022 when a hearing date was fixed, never filed an amended plaint or defence to counterclaim, and went into slumber after failing to obtain injunctions on 2.2.2021. The firm, not an individual advocate, was on record, and no details of communication with the firm were given.

p. 5
02

Legality of the eviction

Holding

The eviction was proper as the appellant breached the lease by failing to pay rent despite a demand notice dated 23.6.2020

Reasoning

A demand notice dated 23.6.2020 stated arrears of Ksh. 1,013,150; the appellant's response of Ksh. 50,000 via M-Pesa and a promise to pay later was not what the lease stipulated. Every failure to perform a primary obligation is a breach of contract, and courts cannot rewrite contracts.

p. 5
03

Burden of proof on the counterclaim

Holding

The respondent discharged the burden on a balance of probabilities by availing the lease and evidence of breach

Reasoning

The respondent produced the lease agreement showing how rent was payable, and the appellant was the one who breached its terms. The documentary evidence and oral testimony met the threshold of proof on a balance of probabilities despite the ex parte hearing.

p. 5
04

Claims on structures and auctioneers' accounts raised for the first time on appeal

Holding

Declined, as they were not pleaded and issues flow from pleadings

Reasoning

The appellant never specifically pleaded a claim over structures, and the lease itself provided that structures would be left intact at expiry. The account issue was likewise not pleaded. Deciding unpleaded issues for the first time on appeal would make the court a court of first instance.

p. 6

Legal principles established

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  • A litigant, not the advocate, bears responsibility for following up a matter filed in court
  • Issues for determination in a suit flow from the pleadings; a court may only pronounce judgment on issues arising from the pleadings
  • Courts do not rewrite contracts for the parties
  • A first appellate court must reconsider and evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
Chief Magistrates Court at Nanyuki
CMCCE005/2020
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrates Court (civil appeal)

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, "Chege t/a Trendz Bar & Restaurant v Mwatha (Environment and Land Appeal E003 of 2023) [2025] KEELC 3564 (KLR)", Case Analysis (2025). Appeal from Chief Magistrates Court at Nanyuki CMCCE005/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3564/eng@2025-05-07

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