Isika v Skylark Impex Limited & another (Environment and Land Appeal E050 of 2023) [2025] KEELC 6363 (KLR)

4. i. That the learned chairman of the tribunal erred in law by failing to define points of determination of framing issues for determination as provided for by law thereby ending in an unjust decision. ii. That the learned chairman of the tribunal erred in law and facts by misdirecting himself on the evidentiary burden each party has in the suit iii. That the learned chairman of the tribunal erred in law and facts in holding that the respondents had discharged their burden of proof iv. That the learned chairman of the tribunal erred in law and facts in failing to take into account all factual issues and evidence submitted by parties thereby arriving at an unjust decision v. That the learned chairman of the tribunal misdirected himself in law by arriving to the decision that the Appellant ought to have taken out witness summons for one Alex Kitavi adversely mentioned in the suit vi. That the learned chairman of the tribunal erred in law misdirected himself in law by arriving at the decision that the Appellant had failed to call the maker of the statements of accounts dated 31st October 2022 when the Respondents did not deny issuing the same to the appellant vii. That the learned chairman of the tribunal erred in law misdirected himself in law and facts by arriving to the decision that the appellant’s willingness to ofier reasonable security as directed was an acknowledgement of debt for the impugned arrears The Appellant thus prays for the following orders; a. The ruling of the learned chairman of the honourable tribunal be set aside and substituted by an order for b. Refund of Ksh 539,500/= paid into the joint account as security back to the appellant c. Refund of Ksh 80,000.00/= being refundable deposits of rent pursuant to clause 2(b) of the impugned tenancy agreements d. Exemplary and General Damages for harassment. e. That the costs in the tribunal and in the appeal be awarded to the appellant 5. The appeal was canvassed by way of written submissions. The Appellant filed submissions on the appeal dated 28th June 2024 whereas the Respondent filed its submissions dated 12th February 2025. 6. In considering the grounds of appeal, ground 1 can be considered on its own. The remaining grounds can be summarized as follows; that the Tribunal Chairman reached a decision that was against the weight of the evidence and misdirected himself on material particulars namely in faulting the Appellant for failing to call one Alex Kitavi, and also in finding that he did not call the maker of the statements. The issues that arise from the memorandum of appeal are as follows;Whether the Hon Chairman correctly framed the issuesWhether the decision reached by the tribunal took into account the evidence 7. This being a first appeal, this court is under a duty to reconsider the evidence adduced and analyze it so as to be able to reach its own independent conclusions and thus determine whether the conclusions reached by the trial court are consistent with the evidence and the applicable law, and will only depart from the findings by the trial Court if they were not based on evidence on record or where the said Court is shown to have acted on wrong principles of law or where its discretion was exercised injudiciously as held in Mbogo & Another v Shah (1968) EA 93. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6363/eng@2025-07-02 2

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8. In Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR the Court held that: “this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefiy put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 9. An appellate Court would not normally interfere with exercise of the discretion of the lower court unless it has not been exercised judiciously. As to what the term “discretion” means the Court in The Supreme Court of Uganda, in Kiriisa v Attorney-General and Another [1990-1994] EA 258 stated that: “Discretion simply means the faculty of deciding or determining in accordance with circumstances and what seems just, fair, right, equitable and reasonable in those circumstances.” That discretion being wide, the main issue before this court is for the court to do justice to the parties, and in so doing the court will not impose conditions on itself to fetter the wide discretion given to it by the rules of procedure. 10. The Appellant faults the Chairman for failing to frame the issues for determination. Framing of point of determination ensures procedural fairness. A party is able to decipher the issues considered by the Judge/ Judicial oficer and thus is able to understand the reasoning that the led to the decision. The Appellant avers that the Hon Chairmans decision was lacking in this aspect. I have considered the decision and note that at paragraph 8 of the Judgement the Court stated that the only major issue that was left for determination was the question of rent arrears and how much. I am unable to fault the Tribunal in this finding as by the time the matter proceeded for hearing the issue of vacating the suit premises had already been determined. 11. On the contentious issue of the rent arrears, the Tribunal Chair considered various issues namely; that the Appellant had changed the mode of paying rent contrary to the terms of the tenancy agreement; that he did not call Alex Kitavi who he alleged to have paid some of the rent to testify; that he did not attend a reconciliation meeting that was called on 6th August 2020 ;that he failed to call the author of the statement of accounts dated 31st October 2022 and lastly his readiness to deposit Ksh 100,000 and deposit a log book was considered to be an acceptance of rent arrears. 12. The issue in dispute then is whether there were rent arrears or not. I agree with the Appellant that the learned Tribunal Chair misdirected himself in assuming that the willingness to deposit the Ksh 100,000 and other security was an indication of acceptance of rent arrears. The Appellant explained that he wanted to vacate the premises and as such ofiered this security under duress to facilitate his release from the premises. 13. However, in as much as this ofier did not prove failure to pay rent, it similarly did not prove that there were no rent arrears. The burden was therefore on both parties to prove their case. The Appellants case that he paid rent was hinged on the fact that statement dated 21st June 2022 difiered substantially from the statement of accounts dated 31st October 2022. He also relied on receipts which were produced by the Plaintifi. 14. On the other hand the Respondents relied on the tenancy agreement which explicitly provided that rent was to be deposited in a specific account. They also relied on the statement dated 31st October 2022 which confirmed the arrears as pleaded. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6363/eng@2025-07-02 3

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15. It is essential to review the documents presented so as to reach a determination in this appeal. it is not in dispute that the parties executed tenancy agreement dated 1st January 2019. Clause (K) of the schedule clearly indicated that the rent was payable by bankers cheque or by deposit in the Standard Chartered Account. It is therefore not clear why the Appellant by his own admission, in contravention of this provision opted to pay rent to the agent. 16. There is the issue of the two statements. In the statement dated 31st October 2022 the Appellant produced a statement which indicates amounts debited and credited. The statement which is in the name of Skylark Company which is not very clear in the balance column. I must indicate that the last column was not clear although in the Plaintifis testimony before the Tribunal he indicates that the arrears according to this statement is Kshs 264,427 . The situation is further compounded by the fact that the Appellant who alleged that he paid some rent to Alex does not prepare a schedule which is clearly cross referenced to other payments he made elsewhere. The court was expected to fill in the gaps. A separate schedule clearly indicating the payments and referencing them to proof thereof would have assisted Tribunal and this court. 17. On the other hand, the statements by Proland Realtors who also produced a contract between them and the 1st Respondent clearly details the payments received and the arrears by the end of the period. A summary as at 2020 was also provided for the Tribunals consideration. The 1st Respondent went even further to produce bank statements which confirm that no funds were received from the Appellant after 2020. 18. The burden is on a party who alleges to prove. And having considered the evidence as was adduced before the Tribunal I and the submissions before this court I find that the Appellant has not established that he had no rent arrears. As such the appeal has no merit and is dismissed with costs. JUDGEMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 2ND OF JULY, 2025 JUDY OMANGE JUDGE In the presence of: Court Assistant Catherine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6363/eng@2025-07-02 4

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