Mohamed

on his own behalf and on behalf of thirty-six other tenants occupying the basement of Towhid Shopping Mall, sought, among other reliefs, a declaration that the Respondent had fundamentally breached the lease agreements by constructing additional shops beyond the agreed basement layout, a mandatory injunction compelling demolition of the alleged unauthorized structures, restoration of the basement to its original configuration, a permanent injunction restraining any further structural modifications, general damages, special damages, and costs. 3. The Appellants' case before the trial court was that they were lawful tenants occupying various shops within the basement of the Respondent's shopping mall pursuant to long-term lease agreements. They contended that the leases contemplated a basement consisting of a fixed number of shops, and that the Respondent unlawfully altered the original layout by constructing additional shops and other structures within the common areas, thereby interfering with their contractual rights, business operations, and quiet enjoyment of the leased premises. 4. Although duly served with summons and the pleadings, the Respondent failed to enter appearance or file a defence. Consequently, the matter proceeded by way of formal proof, during which the 1 st Appellant testified on his own behalf and on behalf of the other Appellants, adopted his witness statement, and produced the lease agreements together with the documents filed in support of the Plaint. Upon the close of the Appellants' case, the trial court directed the filing of written submissions before delivering the impugned judgment. ELC APPEAL NO. E273 OF 2025 2

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5. In its determination, the trial court framed two issues for consideration: whether the Respondent had breached the lease agreements by constructing additional shops within the basement area, and whether the Appellants were entitled to the reliefs sought. 6. Upon examining the lease agreements produced in evidence, the learned magistrate found that none of the agreements contained a provision limiting the number of basement shops to forty, as alleged by the Appellants. Holding that a court cannot rewrite the terms of a contract for the parties, the trial court concluded that the alleged breach had not been proved and accordingly dismissed the suit in its entirety. Being dissatisfied with that decision, the Appellants preferred the present appeal. Memorandum of Appeal 6. Being dissatisfied with the whole of the Judgment and Decree of the Chief Magistrate's Court delivered on 11th December 2025, the Appellant preferred the present appeal through a Memorandum of Appeal dated 15th December 2025, raising ten (10) grounds of appeal. In summary, the Appellant contends that the learned trial magistrate erred in law and in fact by failing to properly evaluate the evidence on record, particularly the lease agreement produced before the court. 7. The Appellant principally faults the trial court for finding that the lease agreement did not contain a clause limiting the number of basement shops to forty (40), whereas, according to the Appellant, that provision was expressly contained in the lease agreement dated 28th May 2019. It is further contended that the learned magistrate failed to read, analyse and consider the documentary evidence, ignored material ELC APPEAL NO. E273 OF 2025 3

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evidence that had been properly pleaded and produced, and consequently arrived at findings that were contrary to the evidence on record. 8. The Appellant further contends that the learned trial magistrate misdirected herself on the burden and standard of proof by holding that the contractual limitation had not been proved despite the relevant lease clause having been tendered in evidence. The Appellant also asserts that the trial court failed to appreciate that courts are bound by the terms of contracts voluntarily entered into by parties, failed to render a reasoned judgment explaining why the alleged contractual provision was disregarded, and ultimately reached a decision that was against the weight of the evidence and occasioned a miscarriage of justice. 9. Consequently, the Appellant prays that this Court allows the appeal, sets aside the judgment and decree of the trial court, allows the Plaint as filed before the subordinate court by granting the reliefs sought therein, and awards the costs of both the appeal and the proceedings before the trial court to the Appellant. Appellant's Submissions 10. The appeal was disposed of by way of written submissions. The Appellant filed written submissions dated 17th March 2026, while the Respondent, despite having been served with the Memorandum of Appeal and the submissions, neither entered appearance nor filed any response. The Appellant submitted that the appeal raises a single issue for determination, namely, whether the trial court erred in law and fact by failing to read, evaluate and properly consider the lease agreement ELC APPEAL NO. E273 OF 2025 4

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dated 28th May 2019, thereby arriving at an erroneous finding that there was no contractual clause limiting the number of basement shops to forty (40). 11. It was submitted that the trial court overlooked a material provision contained in the lease agreements produced in evidence, which expressly provided that the building's basement would consist of forty (40) shops only and that any additional shops would be presumed illegal and subject to demolition. 12. The Appellant argued that the dismissal of the suit was founded solely on the erroneous finding that no such clause existed, despite the clause appearing in the lease agreements contained in the Record of Appeal. Reliance was placed on Mkube Vs Nyamuro [1983] KLR 403, as cited in Rufus Kangethe Kamau Vs Grace Njeri Kamau [2022] eKLR, for the principle that an appellate court may interfere with findings of fact where they are based on a misapprehension of the evidence. The Appellant further relied on Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA 123 on the duty of a first appellate court to reconsider and re-evaluate the evidence before reaching its own independent conclusions. 13. On the basis of those submissions, the Appellant urged this Court to find that the learned trial magistrate failed to properly evaluate the documentary evidence, set aside the judgment of the subordinate court, allow the appeal, and grant the reliefs sought in the Plaint. Issue for Determination ELC APPEAL NO. E273 OF 2025 5

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14. Having considered the Memorandum of Appeal, the Record of Appeal, and the Appellant's written submissions, I am of the view that the appeal raises one issue for determination, namely: Whether the learned trial magistrate erred in law and in fact by failing to properly evaluate the evidence on record, particularly the lease agreement dated 28th May 2019, and consequently erred in dismissing the Appellant's suit. Analysis 15. As this is a first appeal, this Court is enjoined to reconsider and re- evaluate the evidence that was before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witness testify. The principles governing the exercise of this jurisdiction are settled. In Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA 123, the Court of Appeal held that a first appellate court is under a duty to reconsider the evidence, evaluate it itself and draw its own conclusions, though making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. Similarly, in Mkube Vs Nyamuro [1983] KLR 403, it was held that an appellate court will interfere with findings of fact where they are based on no evidence, on a misapprehension of the evidence or where the trial court is shown to have acted on wrong principles. 16. The Appellant's complaint is straightforward. It is not that the learned trial magistrate misinterpreted the lease agreement, but that she failed altogether to appreciate a material provision contained in the documentary evidence before her. The Appellant submits that the dismissal of the suit was founded entirely upon the finding that the ELC APPEAL NO. E273 OF 2025 6

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lease agreements did not contain a clause limiting the number of basement shops to forty, yet the very clause relied upon appeared in the lease agreements produced before the court. It is therefore necessary for this Court to independently examine the record and determine whether that contention is borne out by the evidence. 17. I have carefully perused the lease agreements, which formed part of the Appellant's documentary evidence. Under the heading "TERM", the agreement expressly provides: "30 years lease. Building's basements consist and contained 40 shops more than that will be presumed illegal, and subject to demolishing." 18. That clause is neither obscure nor ambiguous. Indeed, similar wording appears in the other lease agreements produced by the Appellant. With respect, I am unable to reconcile the learned trial magistrate's finding that no such clause existed with the documentary evidence forming part of the record. The conclusion reached by the trial court was therefore founded on a clear misapprehension of the evidence. 19. Having found that the contractual provision did exist, it follows that the premise upon which the learned magistrate dismissed the suit was erroneous. The trial court held that the Appellant had failed to prove the contractual limitation because no such clause existed. Yet the burden resting upon the Appellant under Sections 107, 108 and 109 of the Evidence Act was discharged once the lease agreements containing the impugned provision were produced in evidence and admitted without objection. In those circumstances, the finding that the Appellant had failed to establish the contractual term cannot be ELC APPEAL NO. E273 OF 2025 7

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sustained. The learned magistrate therefore fell into error both in her appreciation of the evidence and in her application of the burden of proof. 20. The learned trial magistrate correctly observed that courts cannot rewrite contracts for parties, a principle reaffirmed by the Court of Appeal in Housing Company of East Africa Limited Vs Board of Trustees, National Social Security Fund & 2 Others [2018] eKLR. However, that principle was inapplicable to the facts as found by the trial court. The Appellant was not inviting the court to imply a contractual term or to rewrite the agreement. Rather, the Appellant was asking the court to enforce an express term already contained in the lease agreements. The issue before the trial court was therefore not whether the court should create a contractual obligation, but whether the Respondent had acted in breach of one that the parties had expressly agreed upon. By proceeding on the mistaken premise that no such contractual term existed, the trial court failed to determine the real controversy between the parties. 21. The record further shows that the Respondent neither entered appearance nor filed a defence before the subordinate court. Consequently, the Appellant's evidence proceeded by way of formal proof and remained uncontroverted. While the absence of a defence does not relieve a plaintiff of the burden of proving his case on a balance of probabilities, it nevertheless required the trial court to evaluate the evidence actually placed before it. That evidence included the lease agreements, the witness statement, the photographs and the Respondent's letter dated 2nd February 2025, which the Appellant relied upon as demonstrating that the Respondent had undertaken not ELC APPEAL NO. E273 OF 2025 8

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to carry out further construction within the basement. The trial court, however, did not evaluate that evidence because it disposed of the suit solely on the mistaken finding that the contractual limitation did not exist. 22. In my view, the learned trial magistrate's failure to appreciate the contents of the lease agreement had a cascading effect on the entire judgment. Having erroneously found that there was no contractual limitation regarding the number of basement shops, the court did not proceed to determine whether the Respondent had in fact constructed additional shops in breach of that provision, whether the Appellant had proved the alleged breach on the evidence tendered, or whether the remedies sought were available in law. The result was that the Appellant's pleadings, oral evidence and documentary exhibits were not evaluated as a whole, notwithstanding that they formed the basis of the claim before the court. 23. Accordingly, I am satisfied that the learned trial magistrate misapprehended material documentary evidence, failed to properly evaluate the record before her, and consequently reached findings that were unsupported by the evidence. That error directly informed the dismissal of the suit and rendered the judgment against the weight of the evidence. The Appellant has therefore demonstrated sufficient grounds for this Court to interfere with the decision of the trial court in the exercise of its appellate jurisdiction. Disposition 24. In the result, having reconsidered the Record of Appeal, the judgment of the trial court, and the Appellant's submissions, I find that: ELC APPEAL NO. E273 OF 2025 9

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a) The appeal is hereby allowed, and the judgment and decree of the Business Premises Rent Tribunal are hereby set aside. b) It is hereby declared that the Respondent's construction of a lift and forty-two (42) shops within the basement of Towhid Shopping Mall constituted a breach of the Appellant's tenancy rights. c) A mandatory injunction is hereby issued compelling the Respondent, within thirty (30) days, to restore the Appellant and the other affected tenants to the basement premises they occupied prior to the impugned alterations or, where restoration is impracticable, to provide them with equivalent business premises within Towhid Shopping Mall. d) A permanent injunction is hereby issued restraining the Respondent from undertaking any further structural alterations or otherwise interfering with the Appellant's and the other affected tenants' quiet possession except in accordance with the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. e) Each party shall bear its own costs of the appeal. It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on 15th day of July, 2026. MOHAMMED N. KULLOW JUDGE ELC APPEAL NO. E273 OF 2025 10

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