Gladys t/a Trophy Auctioneers v Abonyo t/a Ruruma Rising Star Academy (Environment and Land Appeal E005 of 2023) [2026] KEELC 2338 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld a Kshs 3.5 million award to a school operator, ruling that a landlord who watches permanent construction silently cannot later object.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial magistrate had jurisdiction to entertain the suit before her
- 2.Whether the trial magistrate erred in failing to note that the respondent had no authority to put up permanent structures on the suit premises
- 3.Whether the trial magistrate erred in holding that the respondent had proved that he had carried out constructions or developments on the suit property
- 4.Whether the trial magistrate erred in dismissing the appellant's valuation report and relying on the respondent's report without any basis
- 5.Whether the trial magistrate erred in failing to note that the respondent had not specifically pleaded the amounts awarded
- 6.Whether the trial magistrate erred in holding that the appellant had terminated the agreement without notice to the respondent
- 7.Whether the respondent had sublet the premises contrary to the terms of the lease agreement
- 8.Whether the respondent came to court with unclean hands having been in rent arrears
- 9.Whether the trial magistrate failed to consider the appellant's submissions
- 10.Whether the respondent proved his case on a balance of probability
Key legal issues
#Jurisdiction where a dispute involves a controlled tenancy
The magistrate had jurisdiction because the dominant cause of action was breach of contract and compensation for structures, not restoration of possession of a controlled tenancy.
The respondent's claim was that the appellant had terminated the lease, evicted him and taken over the school — actions irreversible given the nature of the business. Restoration of possession was a remote possibility; the dominant issues were breach of the agreement, damages and compensation for structures. The tribunal's jurisdiction over controlled tenancies did not therefore displace the magistrate's jurisdiction over the claim as pleaded and tried.
Authority to erect permanent structures on leased land
Although no written clause permitted permanent structures, the appellant's acquiescence during construction amounted to a variation of the contract by conduct, permitting the structures.
The 2012 lease limited structures to temporary ones and neither it nor the 2013 agreement expressly authorised permanent structures. The court cannot imply such a term, as that would rewrite the contract. However, construction occurred over time under the appellant's acquiescent watch without objection, so the parties' conduct varied the agreement, sealing a tacit agreement permitting permanent school structures.
Pleading of special damages / compensation amounts
The respondent's alternative prayer for compensation at current market value after professional valuation sufficed; compliance with the order to file valuation reports constituted specification of the damages sought.
Though no specific sum was pleaded, the plaint sought compensation at current market value upon professional valuation. The court ordered valuations and both parties complied without demur. The compensation was quantifiable special damages capable of determination by valuation reports; placing a report before the court was tantamount to stating the damages sought.
Termination of the lease without notice; unclean hands and subletting
The appellant terminated the agreement without notice and used self-help (locking the premises, engaging armed men and auctioneers); allegations of rent default, subletting and unclean hands were unsupported by evidence.
Rent difficulties arose from the covid-19 pandemic, and the appellant refunded rents paid, showing impatience. There was uncontroverted evidence of brute force — blocking gates and doors and engaging armed men. No evidence supported claims of subletting or attempts to obtain title to the school. A debtor-tenant may seek court protection against overbearing and oppressive landlord conduct; the unclean-hands allegation could not stand.
Legal principles established
#- A court of law cannot re-write a contract between the parties; they are bound by its terms unless coercion, fraud or undue influence is pleaded and proved.
- Parties may vary the terms of a contract by conduct, including by acquiescence.
- Expert evidence (such as valuation reports) is not binding on the court, which must consider it with all other evidence and give reasons for accepting or rejecting it.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court (Mariakani)
- Mariakani ELC Case No. E021 of 2021
- Jurisdiction invoked
- First appeal to the Environment and Land Court from the magistrate's court (the judgment does not cite a specific statutory provision)
Relief refused
#Setting aside the judgment of the lower court and dismissal of the respondent's suit
The court found the respondent had proved his claim and the appeal lacked merit
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the present appeal lacks merit and it is hereby dismissed with costs to the respondent
these issues were the more dominant cause of action in the respondent's suit, and the trial magistrate had jurisdiction to handle them
there was a tacit agreement whose terms were sealed by the parties' conduct, and clearly confirmed by the appellant's acquiescence, that it was in order for the respondent to construct permanent structures on the premises for school purposes
The court can not imply a contractual term that was not agreed by the parties as that would amount to rewriting the contract for them
There is no authority for the proposition that a person indebted in rent payments can not seek the protection of the court against what he alleges to be overbearing and oppressive conduct on that part of his landlord
while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them
Issues in the judgment
#The memorandum of appeal omits grounds corresponding to lettered items (no ground 'd' gap noted) and grounds g-j repeat as framed issues without their 'failing to note' preamble; also the appellant's jurisdiction objection cites Cap 301 yet a counterclaim for eviction was lodged in the magistrate's court — an internal inconsistency the court itself noted.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gladys t/a Trophy Auctioneers v Abonyo t/a Ruruma Rising Star Academy (Environment and Land Appeal E005 of 2023) [2026] KEELC 2338 (KLR)", Case Analysis (2026). ELC Appeal No. E005 of 2023 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2338/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.