Chege t/a Trendz Bar & Restaurant v Mwatha (Environment and Land Appeal E003 of 2023) [2025] KEELC 3564 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Fairness of the ex parte trial and refusal to set aside the proceedings
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
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.
Legality of the eviction
The eviction was proper as the appellant breached the lease by failing to pay rent despite a demand notice dated 23.6.2020
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.
Burden of proof on the counterclaim
The respondent discharged the burden on a balance of probabilities by availing the lease and evidence of breach
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.
Claims on structures and auctioneers' accounts raised for the first time on appeal
Declined, as they were not pleaded and issues flow from pleadings
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.