keelc-2025-06378

2. The Appellant (hereinafter referred to as the Tenant) in an application dated 8th March 2022 sought to review this Judgement on the ground that the Tribunal Chair erred by finding that occupation commenced on 8 th November 2016 and not the actual date. The Tenant in an application dated 25th March 2022 sought an order for the Landlord to reconnect the electricity and water. She also sought an order restraining the Landlord interfering with her quiet possession. She sought that the notice to terminate tenancy be struck off. In the affidavit in support of the application she deposed that she had no rent arrears and stated that she had invested heavily in the premises and stood to lose a great deal. 3. In the meantime, the Respondent (hereinafter referred to as the Landlord) too filed an application dated 25th March 2022 before the Tribunal seeking to be allowed to disconnect the electricity and water for the Appellant and also seeking an order of vacant possession on the grounds that the Appellant was not paying for electricity and water and had subsequently incurred a bill of Kshs 635,000. The Appellant further alleged that the Respondent was in rent arrears of Kshs 1,715,000. 4. In response to the application for review the Landlord averred that the Tribunal did not err in finding that the monthly rent was payable at Ksh 40,000 with effect from 8th November, 2016. The Landlord opined that the question of an error in evaluation of evidence is an issue of appeal not review. JUDGMENT ELC APPEAL E 105 OF 2022 2 of 9

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5. The Tenant in response to the application dated 25 th March 2022 filed a Replying Affidavit in which she denied owing the Landlord any rent arrears or utilities dues. She stated that she advanced the landlord an amount of Kshs 70000 which was to be used to complete construction of the canteen. She avers that she paid this amount in instalments and finally moved into the canteen in September, 2018. According to her it was agreed that the 700,000 was to cater for the rent until November 2021. She insisted that she did not incur any bills for utilities as there was no separate meter. 6. Confronted with these three applications the learned vice chair of the Tribunal found that there was no ground to review the Judgement as the Tenant had not provided evidence to controvert the assertions of the Landlord who had produced a letter. He also dismissed the two applications filed by the Landlord and Tenant. It is this Ruling the Tenant appeals against on the grounds contained in the memorandum of appeal thus; i. The Tribunal erred both in law and fact in dismissing the application dated 8th March 2022 in whole and holding that there were no grounds that the appellant had demonstrated showing that there was an error on the face of the record and there were sufficient reasons to warrant a review. ii. The Tribunal misdirected itself by failing to appreciate that the rent was payable from January 2017 when the Appellant started running the canteen. JUDGMENT ELC APPEAL E 105 OF 2022 3 of 9

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iii. The Tribunal erred in law and in fact by failing to consider and appreciate that the dispute was with regards to the rent payable from September 2018 when the Appellant started operating from the newly constructed canteen and that both parties had demonstrated and submitted that the rent for the period between January 2017 to August 2018 had already been paid through the Appellant advance payment of Kshs.700,000/- that was meant for the construction of the incomplete canteen. iv. The Tribunal misdirected itself by failing to appreciate that the valuation reports filed in court were with respect to the newly constructed canteen and not the old canteen and the rent payable for the new canteen could not apply for the makeshift canteen. v. The Tribunal erred both in law and in fact in disregarding the written submissions as filled by the appellant in support of the application for review. vi. The Tribunal erred both in law and fact in not appreciating the strength of the Appellant’s application. vii. Other grounds and reasons to be adduced at the hearing 7. It is proposed to seek from this Honourable Court orders; (a) That the appeal be allowed (b) That the order dismissing appellant’s application for review be set aside (c) That the Appellant’s Notice of Motion Application for review dated 8 th March 2022 be allowed with costs JUDGMENT ELC APPEAL E 105 OF 2022 4 of 9

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(d) All other or better reliefs as this court may deem fit and proper to grant 8. The Appeal herein came up for directions on the 18 th July, 2023 on which date the court gave directions that the appeal be disposed of by way of written submissions. Both parties filed submissions which I have carefully considered. The Tenants counsel addressed the court on a number of issues which included; the powers of the tribunal to set the date payable for rent; whether there was an error apparent on the face of the record; leasehold agreement and reconciliation of accounts. The Landlords counsel addressed the court on a single issue which is whether the Tribunal erred in failing to review the Judgement. 9. Section 107(2) of the Evidence Act states that; “When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”. It was submitted that the appellant had not produced any evidence to authenticate the agreement and prove that indeed the tenancy agreement did exist. Counsel further submitted that due to lack of a tenancy agreement, the appellant should give back vacant possession being that the rightful owner of the suit property is the 2nd respondent whom he had entered into an agreement for sale JUDGMENT ELC APPEAL E 105 OF 2022 5 of 9

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10.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. In Gitobu Imanyara & 2 Others vs 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. Briefly 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”. 11.Having looked at the grounds in the memorandum of appeal and submissions by the respondents and considering that this an appeal against the Ruling to review and not the initial Judgement the only issue the court has to determine is whether the Tribunal Vice Chair erred in refusing to allow the application for review. 12. The law relating to review is fairly settled. “Any person who considers himself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but JUDGMENT ELC APPEAL E 105 OF 2022 6 of 9

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from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” “Any person considering himself aggrieved— (a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.’ 13.The Tribunal considered the application for review and found that based on the letter that was produced there was no error apparent. The Tribunal Vice Chair went further to find that the Tenant had not produced any evidence to support her version. I have considered the evidence that was adduced before the Tribunal and I cannot fault the Vice Chair. It is not self -evident that there was an error on the date of occupation. It is also important to note that the Tribunals powers on review were only limited to correcting clear errors JUDGMENT ELC APPEAL E 105 OF 2022 7 of 9

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and could not extend to considering conflicting positions and resolving them. The Tenant did not clearly point out the evidence which supported her version of the events. 14.Section 109 of the Evidence Act, Cap. 80, Laws of Kenya provides: “The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person”. Section 107(1) of the same Act provides that: (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”. 14. I find that the Appellant/ Tenant did not discharge the burden of clearly pointing out the error on the face of the record hence I find that the appeal is not merited and is dismissed with costs. Judgement Signed, Dated and Delivered via Microsoft teams this 6th day of February 2025. JUDY OMANGE JUDGE In the presence of: No appearance by parties JUDGMENT ELC APPEAL E 105 OF 2022 8 of 9

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Court Assistant Meryline JUDGMENT ELC APPEAL E 105 OF 2022 9 of 9

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