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ELCDismissedMemorandum of Appeal dated 15th December 2023 (from BPRT No. E167 of 2023)· [2025] KEELC 7675 (KLR)

X-Press Systems & Services Ltd v Kifaru Enterprises Limited (Environment and Land Appeal E061 of 2023) [2025] KEELC 7675 (KLR)

High Court of Kenya (Environment and Land / appeal from Business Premises Rent Tribunal)
31 October 2025
4,217 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Appellant (Tenant) appealed against the ruling of the Business Premises Rent Tribunal (Hon. Andrew Mumma, Chairman) delivered on 6th December 2023 in BPRT No. E167 of 2023, which dismissed its amended Reference. The Reference had sought compensation for alleged forcible detention, a refund of allegedly overcharged rent, and costs, after a Tribunal-ordered joint measurement showed the lettable area of Go-Down No. 2 at Spectrum Business Park, Baba Dogo Road, was 575.5 square metres (6,194.52 sq ft) rather than the 6,800 sq ft stated in the lease dated 29th July 2019. The Appellant claimed overpayments of Kshs 1,166,452.24 and fraudulent misrepresentation; the Respondent (Landlord) maintained the lease was for the premises as a whole, that the area issue was an afterthought raised to defeat a deferred rent claim, and that the Appellant had never claimed coercion, fraud or undue influence before signing. The court condensed ten grounds into two issues: whether rent was based on monthly rent or square footage, and whether the Chairperson analysed the evidence. Applying Selle v Associated Motor Boat Co., the court held that Clause 1 of the lease fixed monthly rents for the entire demised premises and was not calculated per square foot; the discrepancy in area was therefore immaterial and a court cannot rewrite the contract. The forcible detention claim failed because the Appellant had itself sought to remain in occupation and was granted leave to vacate by the Tribunal's ruling of 2nd August 2023. The Chairperson was found to have properly analysed the evidence. The appeal was dismissed with costs.

Key legal issues

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01

Whether rent under the lease was payable on a per-square-foot basis or for the entire premises

Holding

The rent was for the entire premises; the stated 6,800 square feet did not determine the rent and the Chairperson correctly found no basis for a refund

Reasoning

Clause 1 of the lease set fixed monthly rent figures with annual increases, payable without deduction; it did not provide for rent calculated per square foot. Although the joint measurement established a lettable area of 575.5 square metres (6,194.52 sq ft), the agreed rent was independent of the lettable space. The court cannot rewrite a contract between the parties, so the discrepancy in area gave no entitlement to a refund.

p. 9
02

Whether the Appellant was forcibly detained and entitled to compensation

Holding

No forcible detention was demonstrated; the Appellant sought to remain, and the Tribunal permitted it to vacate on terms

Reasoning

The record showed the Appellant itself sought an injunction restraining interference with its occupation and was granted leave to vacate on or before 30th August 2023 upon payment of two months' rent. Having elected to stay and having sought protection of its occupation, the Appellant could not claim compensation for forceful detention.

p. 9
03

Whether the Chairperson failed to analyse the evidence

Holding

The Chairperson reviewed the joint inspection report but correctly deemed it immaterial because rent was not calculated on square footage

Reasoning

The judgment shows the Chairperson considered the joint measurement report but found it of no consequence since rent was not area-based. That was a reasoned treatment of the evidence, so the ground of failure to analyse evidence failed.

p. 9

Legal principles established

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  • A court cannot rewrite a contract between the parties; where rent is fixed as a monthly sum for the whole demised premises and not tied to square footage, a discrepancy in stated area does not affect the rent payable
  • A first appellate court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses (Selle v Associated Motor Boat Co.)

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The Tenant shall pay all rent arrears and continue to pay rent as per the lease agreement dated 29th July 2019 as it falls due, failing which the landlord is at liberty to levy distress (Tribunal orders upheld)

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels, and Catering Establishments) ActSection 12(1)(b)

Cases cited (13)

  • Sachin Shaha v Jagat Mahendra Kumar Shah & another
    (2020) EKLR
  • Transport Workers Union v Consolbase Ltd
    (2015) EKLR
  • African Cotton Industries Ltd v Rural Development Services Ltd
    (2021) EKLR
  • Sakunda v Pyrotechnics Company Limited
    (Civil Appeal 71 of 2021) (2022) KEHC 10612
  • Rodgers Mwema Nzioka v The Attorney General & Others
    Nairobi HCCC No. 613 of 2006
  • Karibu House (19173) Ltd v Travel Bureau Ltd
    (1977) eKLR
  • Madhupaper International Ltd & another v Kenya Commercial Bank Ltd & 2 others
    (2003) eKLR
  • L.U. International Ltd v Kenya National Trading Corporation & others
    (1995) eKLR
  • National Bank of Kenya Ltd v Pipe Plastic Samkolit (K) Ltd & Another
    Civil Appeal No. 95 of 1999 (2001) KLR
  • Fina Bank Ltd v Spares and Industrie Ltd
    (2001) 1 EA 52
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Ltd
    (2017) eKLR
  • Mohammed Guyo v Richard Mwilaria & another
  • Selle & Another vs Associated Motor Boat Company and Others
    (1968) 1 EA 123
On appeal from
Business Premises Rent Tribunal
BPRT No. E167 of 2023
Jurisdiction invoked
First appellate jurisdiction over the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and 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, "X-Press Systems & Services Ltd v Kifaru Enterprises Limited (Environment and Land Appeal E061 of 2023) [2025] KEELC 7675 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 15th December 2023 (from BPRT No. E167 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7675/eng@2025-10-31

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