Wangatho v Gacheche (Environment and Land Appeal E019 of 2024) [2026] KEELC 2924 (KLR)

2. e. It is legally required that whenever the Landlord gives notice to the Tenants as stipulated under Section 301 of the Landlords and Tenants Act, the notice must be signed by the Landlord personally, not by his Advocate or his Agent. In this Case No. E016 of 2023 (Nyeri), the Hon. Members erred in law and fact on this issue. f. The trial Members of the Tribunal failed to appreciate that the oficial search for the disputed Plot lists the Respondent's father (Robert Timothy Gacheche), now deceased, and that it shows the lease had already expired. g. The Members erred in their judgment by failing to recognize that the plan to reconstruct the building has not been approved by the County Government's Planning and Lands Department and is an afterthought by the Respondent. The Appellant prays that the judgment of the Tribunal be set aside and his appeal be allowed with costs. Summary of evidence before the Tribunal 3. The dispute began when the Landlord, who is the Appellant herein, issued a notice to terminate the tenancy of the Tenant, the Respondent herein, dated the 30th of November 2022. The grounds for termination, as outlined in the notice, are that the Landlord intends to demolish or reconstruct the premises comprised in the tenancy, or to carry out substantial construction work on such premises or part thereof. 4. The Tenant filed a reference to the notice, and the parties were heard, presented their witness statements and documents, and judgment was delivered on the 3rd of June 2024. 5. The Tribunal found that there was indeed a Landlord-Tenant relationship, that the notice of termination of tenancy dated 30th November 2022 was proper in form and content, compliant with the law, and that it gave the Tenant 30 days to vacate the premises or be evicted at his cost. 6. Dissatisfied with the decision of the Tribunal, the Tenant filed this Appeal. The Appellant’s written submissions 7. The Appellant submitted that he objected to the Notice to terminate on the grounds that it was signed by the Landlord’s advocate rather than by the Landlord himself. 8. Further, the Appellant has constructed the said plot No. Karatina/Block 1/145 using his own resources amounting to Kshs.4,335,500/=, which the Respondent did not object to. 9. It is also his submission that upon conducting a search at the Land Registry to ascertain whether the suit premises belong to the Respondent, he found that it is registered in his deceased father’s name. Thus, the confirmation of the grant dated 17th February 2020 was not registered with the Land Registry at Nyeri. 10. The Appellant prays that his appeal be allowed, that the Tribunal's decision be set aside, and that the appeal be allowed with costs. 11. The Appellant also stated that the Respondent ought to have refunded the sum of Kshs.4,335,500/=, which was used for the construction, to the Appellant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2924/eng@2026-04-30 2

page 2 of 7

Respondent’s written submissions 12. Counsel for the Respondent submitted that the Respondent’s notice of termination of tenancy was valid under section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act. 13. Counsel also relied on the holding in Manaver N. Alibhai T/A Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 2013 of 1994. 14. Regarding the Appellant’s contention about the Respondent’s ownership of the suit premises, Counsel relied on the definition of ‘Landlord’ under section 2 of the Act and submitted that, because the person to whom the Appellant paid rent was the Respondent before the notice was issued, the Respondent was the Landlord. 15. Regarding the Appellant’s contention that his advocate rather than the Respondent signed the Notice of termination, Counsel relied on Order 9 Rule 1 of the Civil Procedure Rules, which permits an advocate or duly appointed agent to act on another person’s behalf. It was noted that no law prohibits advocates, as recognized agents of a Landlord, from signing a Notice on the Landlord’s behalf. 16. Article 40 of the Constitution and Section 7(1)(f) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act were quoted and relied upon. It was submitted that the grounds for termination of the tenancy were that the Landlord intended to demolish or reconstruct the premises comprised in the tenancy. On this point, the case of Auto Engineering v M. Gonella & Co. Ltd [1978] eKLR was cited. 17. Regarding the Appellant’s contention that he used his funds to construct on the suit premises, it is submitted that no documentation was produced to substantiate this. 18. The Respondent concludes that the Tribunal did not err in law or fact in terminating the tenancy in question and that the Respondent had a valid notice of termination. The Appellant urged the Court to dismiss the appeal and uphold the Tribunal’s decision. Analysis and determination 19. The role of an Appellate Court was stated in the case of Peter M. Kariuki v. Attorney General [2014] eKLR, which the Respondent relied upon, where the Court observed that: “ The duty a first appellate is to re-evaluate the evidence and all the material placed before the trial court as well as the judgment or ruling and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the parties first hand. The first appellate court has jurisdiction to reverse or afirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is open for reconsideration both on questions of fact and law. The judgment of the appellate court must refiect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court.” 20. After considering the case before the Business Premises Rent Tribunal, the Memorandum of Appeal, and the parties’ rival submissions, the following issues arise for determination. Did the parties have a valid and legally recognized Landlord-Tenant relationship? Was the Notice for termination of tenancy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2924/eng@2026-04-30 3

page 3 of 7

dated 30th November 2022 proper and enforceable? Should the Tribunal have ordered a refund of Ksh.4,335,500/= to the Appellant as the sum he spent on construction at the tenancy suit premises? Who should bear costs? 21. The parties do not dispute that the Appellant lived at the suit premises and paid rent to the Respondent herein before notice of termination of tenancy was issued to him. The Appellant, however, contends that the suit premises were not registered in the Respondent's name but were still in the name of his deceased father, which he learnt after conducting a search. 22. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301 defines ‘Landlord’ in section 2 of the Act as follows: “ In relation to a tenancy, means the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy.” 23. The suit premises were still registered in the name of the Respondent’s deceased father, but a deceased person cannot receive rent. Therefore, the administrators of the deceased person’s estate or the beneficiaries named in the Grant are entitled to receive rent to continue servicing the estate before it devolves and after. 24. From the Respondent’s bundle of documents produced before the Tribunal, it is confirmed that the succession suit in the matter of the Estate of Robert Timothy Gacheche (Deceased), the Respondent’s father, was fully settled by consent, with the Respondent inheriting Karatina Town Block 1/145, the suit premises herein, absolutely, as confirmed in the consent of 26th June 2023. This makes it clear that the Respondent was entitled to the rent proceeds, which the Appellant confirmed he paid to the Respondent. A legally recognized and binding Landlord-Tenant relationship thus existed between the parties. 25. The Court in the case of Ramadhan Mohamed Ali v. Hashim Salim Ghaim [2013] eKLR established that: “ There is no dispute that the Respondent was in relation to the payment of rent, the Appellant’s landlord, and from the evidence before the Tribunal, he is the person who is entitled to rents and profits from the suit property as part of the deceased’s estate. As such, it was not compulsory for him to apply for and take out a Grant of Letters of Administration under section 45 of the Law of Succession Act before giving the notice of termination of tenancy. The Tribunal’s finding at page 3 of its Judgment is correct that”“Ownership is not an issue that is relevant under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301, Laws of Kenya). 26. On termination of the tenancy dated 30th November 2022, Section 4(1) and (2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301 provides as follows with regard to termination of a controlled tenancy: “ (1). Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2924/eng@2026-04-30 4

page 4 of 7

(2). 27. A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.” The Court of Appeal in the case of Munaver N Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] KECA 166 (KLR) emphasized this and stated that: “ The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take efiect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the grounds on which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.” 28. A review of the Notice for termination of tenancy dated 30th November 2022 shows that it was in the prescribed Form A and was to take efiect on 1st March 2023, providing the Appellant with over three (3) months' notice, well within the prescribed timeline. 29. The grounds the Respondent cited for termination of the tenancy are found in Section 7(1)(f) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, which is set forth as follows: “ Where under section 4 of this Act served a notice of termination of a controlled tenancy on the tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice—that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises;” 30. Thus, there is no fault in the form of the Notice of termination of tenancy. The Appellant argues that it was signed by the Respondent’s advocates and not by the Landlord himself, but the notice itself indicates that the Landlord signed it and was only prepared by Messrs. Kisaka & Shalle Advocates LLP. The Appellant did not disprove that the signature does not belong to the Landlord by enlisting the services of an expert document examiner to establish that the signature does not belong to the Tenant. Further, if an Advocate indeed signed the notice, the Tenant did not disprove that the Landlord had given them power of attorney to do so. 31. The Appellant had the burden of disproving any alleged issue he contended against, as it has been held that the burden of proof shifts in trial by the Court of Appeal. In Mumbi M'Nabea v David M.Wachira [2016] eKLR, the Court of Appeal stated, while commenting on the burden of proof in the Kenyan context, that: “ The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2924/eng@2026-04-30 5

page 5 of 7

the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.” 32. I therefore hold that the notice of termination of tenancy dated November 30, 2022, was proper in form and content and legally enforceable against the Appellant herein. 33. Whether the Tribunal should have ordered a refund of Ksh. 4,335,500/= to the Appellant as the sum he spent on the construction of the suit premises. The Appellant claims that he invested KShs. 4,335,500/ = in the construction of the suit premises, and that the Tribunal should have ordered a refund of the same. However, he failed to produce any evidence of this in any form, to show how he came to build on the landlord's land, or to show whether there was an arrangement of that nature within or outside the tenancy. Therefore, it remains an unproven allegation. As held by the Learned Judges of Appeal in the Mumbi M'Nabea v David M.Wachira Case (Supra), that: “ Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows: “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.” The above provision provides for the legal burden of proof. However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:“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.” The position was reafirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280, where it was held that: “Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the afirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.” 34. In conclusion, the appeal lacks merit and is hereby dismissed with costs to the Respondent. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 30TH DAY OF APRIL, 2026. E. K. MAKORI JUDGE In the presence of: Mr. Kisaka for the Respondent Appellant (in person) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2924/eng@2026-04-30 6

page 6 of 7

Kendi: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2924/eng@2026-04-30 7

page 7 of 7