Africasa Real Estate Limited v Scorpio Enterprises Limited

without such consent. The plaintiff pleads that the cost of restoration of the suit premises to its original state before it was sublet to the defendant totalled to Kenya Shillings 20,242,425.00 which the plaintiff also claims from the defendant. The plaintiff also paid Kenya Shillings 65,000 for the services of a firm of professional valuers who came up with the cost of restoring the suit property. Defence of the defendant 4. The defendant filed a defence dated 19th May 2020 denying the claim. However, the defendant never called any evidence in support of statements made in that defence. Evidence 5. The plaintiff called one witness, Alessandro Trentavizi on 14th April 2026, who reiterated the contents of the plaint and his witness statements dated 21st January 2020 and 8th May 2019 respectively and produced various documents as exhibits 10 -11 and the plaintiff’s case was marked as closed. Defendant’s evidence. 6. The defendant has not brought any evidence to controvert the plaintiff’s evidence. I have considered clause 1(b) of the lease dated 24th November 2014 between the parties herein and found that the lease required the defendant to pay for water and electricity, sanitary conservancy and telephone charges in connection with the leased premises. A similar clause is repeated in the lease dated 31 st December 2014, executed by the same parties. Analysis and determination. 7. This is a claim for a liquidated sum. It has been held on a number of occasions by court that failure to rebut evidence tendered by one party MLDELCCNOE001/26-JDGT/DF-21.01.20/FABM-05.10.23/FH-09.02.23/LH-14.05.26/DJ-22.09.26F. Page 2 of 4

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leaves the court with no option but to draw an inference that the facts as presented are true. See Karuru Munyoro v. Joseph Ndumia Murage & Another Nyeri HCCC No. 95 of 1988, where Makhandia J. discussed the effect of failure to rebut evidence as follows: “The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendants and or their counsel to cross-examine her on the evidence, the plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon.” 8. In Trust Bank Limited V Paramount Universal Bank Limited & 2 Others [2009] KEHC 4030 (KLR) the court observed as follows: “…the 2nd and 3rd Defendants closed their cases without calling a witness. It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since, in so doing, the party fails to substantiate its pleadings. The 2 nd Defendant and 3rd Defendant’s defence were unsubstantiated and remained mere statements. In the same vein failure to adduce any evidence meant that the evidence adduced by the Plaintiff against the 2 nd and 3rd Defendants was uncontroverted and therefore unchallenged. In Autar Singh Bahra and Another Vs Raju Govindji HCCC No. 548 of 1998(UR) Mbaluto J. held: “Although the Defendant has denied liability in an amended Defence and counter-claim, no witness was called to give evidence on his behalf. That means that not only does the Defence rendered by the 1st Plaintiff in support of the Plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.” MLDELCCNOE001/26-JDGT/DF-21.01.20/FABM-05.10.23/FH-09.02.23/LH-14.05.26/DJ-22.09.26F. Page 3 of 4

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9. In the absence of any contrary evidence by the defendant, I am persuaded that the defendant was supposed to pay for water and electricity charges and that he never paid for the same and the plaintiff's claim is valid. 10. The defendant has also not controverted the plaintiff’s claim that Kenya Shillings 20,242 425.00 is the cost of restoring the premises to the state they were in before they were leased to it. The costs of the assessment of the cost of restoring the premises is also not disputed. 11. This court thus finds that the plaintiff has proved its claim on a balance of probabilities and so judgment is hereby entered for the plaintiff against the defendant for: a. The sum of Kenya Shillings 21,912,318.40; b. Costs of the suit; c. Interest on a and b, hereinabove at court rates. Dated, signed and delivered at Malindi on this 22 nd September 2026. MWANGI NJOROGE JUDGE, ELC MALINDI. MLDELCCNOE001/26-JDGT/DF-21.01.20/FABM-05.10.23/FH-09.02.23/LH-14.05.26/DJ-22.09.26F. Page 4 of 4

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