Kiburu v Boma Mart Limited & 2 others

2. The Appellant filed a defence and a counterclaim seeking, inter alia, rent arrears in the sum of Kshs. 1,628,000 together with interest and costs. Upon hearing the matter, Hon. D. M. Kivuti (Principal Magistrate) delivered judgment in favour of the Respondents and dismissed the Appellant's counterclaim. The learned trial magistrate found that renovations had been undertaken on the leased premises and held that, notwithstanding the provisions of the lease requiring consent, the conduct of the parties justified allowing the Respondents to offset the cost of those renovations against the rent arrears claimed by the Appellant. 3. Aggrieved by that decision, the Appellant lodged High Court Civil Appeal No. E628 of 2021. The appeal came before Hon. Justice S. Mubungi, who considered the record of appeal, the pleadings, the judgment of the subordinate court and the submissions on record. In a judgment delivered on 30th July 2024, the learned Judge found that clause 3(q) of the lease expressly required prior written consent before any alterations or improvements could be undertaken and that there was no evidence demonstrating that such consent had been sought or obtained. 4. The Court further held that the trial court had erred in invoking the doctrine of conduct to override the express provisions of the lease agreement and observed that the parties were bound by the terms of their written contract. Having reached that conclusion, the Court found that the Respondents were not entitled to offset the alleged renovation ELCLA E036 OF 2026 2

page 2 of 17

expenses against rent arrears and that the Appellant's counterclaim had been improperly dismissed. The appeal was consequently allowed and the judgment of the subordinate court was set aside. 5. Following the delivery of that judgment, the Respondents filed a Notice of Motion dated 30th September 2024 seeking the setting aside of the judgment of 30th July 2024. The application was heard by Hon. Justice A. C. Mrima. The Respondents contended that they had not filed submissions before the appeal was determined due to an inadvertent omission within their advocates' chambers after the advocate handling the matter left the firm without properly handing over the file. 6. In a ruling delivered on 31st July 2025, the learned Judge found that the explanation given constituted sufficient cause and that the Respondents ought to be afforded an opportunity to present their case. The Court accordingly set aside the judgment delivered by Hon. Justice S. Mubungi on 30th July 2024, directed that the Respondents' submissions be deemed as duly filed and ordered that the appeal be heard afresh. 7. Thereafter, upon considering the nature of the dispute and the pleadings on record, Hon. Justice W. Musyoka, in a ruling delivered on 15 th December 2025, found that the appeal properly fell within the jurisdiction of the Environment and Land Court and ordered that it be transferred to that Court for hearing and final determination. The appeal therefore falls for determination before this Court on the basis of the Memorandum of ELCLA E036 OF 2026 3

page 3 of 17

Appeal, the Record of Appeal, the parties’ written submissions, the Appellant’s supplementary submissions and the law. B. Memorandum of Appeal 8. By a Memorandum of Appeal dated 28th September 2021, the Appellant challenged the judgment of Hon. D.M. Kivuti (Principal Magistrate) and anchored the appeal on the grounds set out therein. In summary, the Appellant contended that the learned trial magistrate erred in law and in fact by finding in favour of the Respondents despite finding that the existence and terms of the lease agreement were not disputed, that rent arrears in the sum of Kshs. 1,628,000 were due and owing, that any improvements to the leased premises required the prior written consent of the landlord which had not been obtained, and that such improvements would become the property of the landlord without compensation. 9. The Appellant further faulted the learned trial magistrate for allowing the Respondents to offset the alleged cost of improvements against rent arrears contrary to the express provisions of the lease agreement and for consequently dismissing the Appellant's counterclaim for rent arrears. C. Parties' Submissions The appeal was disposed of by way of written submissions. ELCLA E036 OF 2026 4

page 4 of 17

10. In the Appellant's submissions, counsel identified two issues for determination, namely: whether the learned trial magistrate erred in allowing the Respondents to offset the alleged cost of improvements against rent arrears, and whether the learned trial magistrate erred in dismissing the Appellant's counterclaim for rent arrears. Counsel submitted that the relationship between the parties was governed by a written lease agreement whose existence and terms were not disputed. 11. It was argued that under Clause 3(q) of the Lease Agreement, any alterations, additions or improvements to the suit premises required the prior written consent of the landlord, and that any improvements undertaken would become the property of the landlord without compensation. According to the Appellant, the learned trial magistrate erred by permitting the Respondents to offset renovation expenses against rent arrears notwithstanding the express provisions of the lease. 12. In support of that position, counsel relied on National Bank of Kenya Limited Vs Pipeplastic Samkolit (K) Limited & Another [2001] eKLR and Savings and Loan (K) Limited Vs Mayfair Holdings Limited [2012] eKLR, where the Court of Appeal affirmed the principle that courts must enforce contracts as executed by the parties and cannot rewrite contractual terms. 13. Counsel further submitted that the Respondents' claim for Kshs. 1,699,000/- allegedly incurred in carrying out improvements was in the ELCLA E036 OF 2026 5

page 5 of 17

nature of special damages which required strict proof. Reliance was placed on Aliff Construction Company Limited Vs County Government of Tana River & Another [2019] eKLR and Kenya Tourist Development Corporation Vs Sundowner Lodge Limited [2018] eKLR for the proposition that special damages must not only be specifically pleaded but must also be strictly proved. It was submitted that the evidence tendered by the Respondents did not meet that threshold. 14. On the issue of the counterclaim, counsel submitted that the learned trial magistrate failed to give effect to his own findings that rent arrears amounting to Kshs. 1,628,000/- were due and owing to the Appellant and that the lease required written consent before any improvements could be undertaken. Counsel argued that having made those findings, the trial court had no basis for dismissing the counterclaim. The Court was therefore urged to allow the appeal, set aside the judgment of the subordinate court and enter judgment for the Appellant in accordance with the prayers sought in the counterclaim together with interest and costs. D. The Respondent's Submissions 15. The Respondent opposed the appeal through written submissions in which she identified two issues for determination, namely: whether the appeal is meritorious and who should bear the costs of the appeal. Counsel submitted that the appeal was fundamentally misconceived ELCLA E036 OF 2026 6

page 6 of 17

because it was premised on the existence of a landlord-tenant relationship which had never existed between the parties. 16. It was argued that although the Appellant had represented before the Tribunal that the Respondent was her tenant paying monthly rent of Kshs. 150,000, no tenancy agreement, rent receipts, rent payment records or any other documentary evidence was ever produced to substantiate that assertion. 17. Counsel maintained that the Respondent had consistently occupied the suit property as her matrimonial home since its acquisition in September 2010 and had at all times disputed the existence of any tenancy relationship. Reliance was placed on Kenya Akiba Micro Financing Limited Vs Ezekiel Chebii & 14 Others [2012] KEHC 5590 (KLR) and Kiu Construction Limited Vs Karooooo Limited (Formerly Retriever Limited) [2025] KEHC 11273 (KLR) for the proposition that where a party fails to produce evidence peculiarly within its possession, the court is entitled to draw an adverse inference against that party. 18. On the question of jurisdiction, counsel submitted that the Tribunal correctly found that it lacked jurisdiction ab initio because the suit property was a residential property and did not fall within the scope of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. It was argued that even the tenancy agreement relied ELCLA E036 OF 2026 7

page 7 of 17

upon by the Appellant in relation to a third party expressly described the premises as a residential property and restricted its use to residential purposes only. Counsel therefore contended that the Tribunal properly vacated the eviction orders issued on 14 th November 2025 upon discovering that they had been made without jurisdiction. 19. In support of that submission, reliance was placed on the celebrated decision in Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Limited [1989] KECA 48 (KLR) for the principle that jurisdiction is everything and that a court or tribunal acting without jurisdiction acts in vain. Counsel further relied on Kenya Pipeline Company Limited Vs Glencore Energy (U.K.) Limited [2015] eKLR and Roots Capital Incorporated Vs Tekangu Farmers’ Cooperative Society Limited [2016] eKLR in support of the argument that courts should not lend their aid to a party seeking to benefit from unlawful conduct. 20. Counsel further submitted that the Appellant could not rely on the alleged tenancy created in favour of Andrew Maru because the same was purportedly created after the issuance of conservatory orders restraining any dealings with the suit property and was therefore incapable of conferring enforceable rights. It was argued that any such arrangement was tainted by illegality and could not be enforced by a ELCLA E036 OF 2026 8

page 8 of 17

court of law. 21. In that regard, reliance was placed on Patel Vs Singh [1987] KECA 21 (KLR), Mapis Investment (K) Limited Vs Kenya Railways Corporation [2006] KECA 344 (KLR) and Kenya Airways Limited Vs Satwant Singh Flora [2013] KECA 545 (KLR) for the principle embodied in the maxim ex turpi causa non oritur actio, namely that a court should not enforce rights founded upon an illegal transaction. Counsel therefore urged the Court to find that the appeal was devoid of merit and to dismiss it with costs. In support of the prayer for costs, reliance was placed on Jasbir Singh Rai & 3 Others Vs Tarlochan Singh Rai & 4 Others [2014] KESC 31 (KLR), where the Supreme Court reaffirmed the general principle that costs follow the event. 22. Following the setting aside of the judgment delivered on 30 th July 2024 and the admission of the Respondents' submissions, the Appellant filed supplementary submissions in response to the Respondents' contention that the appeal was incompetent for want of a certified decree. Counsel submitted that the issue had previously been addressed before Hon. Lady Justice C. Meoli on 16th June 2023 when the matter came up for Notice to Show Cause. 23. It was argued that pursuant to Section 2 of the Civil Procedure Act, a decree for purposes of appeal includes a judgment and that an ELCLA E036 OF 2026 9

page 9 of 17

appeal is competent notwithstanding the absence of a formal decree. Counsel therefore maintained that the certified copy of the judgment on record was sufficient for purposes of instituting the appeal and that the contention that the appeal was incompetent for lack of a certified decree was devoid of merit. The Court was consequently urged to determine the appeal on its merits and allow it as prayed. Issues for Determination 24. Having considered the Memorandum of Appeal, the Record of Appeal, the parties' written submissions and the supplementary submissions on record, the issues that arise for determination are: I. Whether the appeal is competent notwithstanding the absence of a formal certified decree. II. Whether the learned trial magistrate erred in law and fact in allowing the Respondents to offset the alleged cost of renovations and improvements against rent arrears contrary to the terms of the lease agreement. III. Whether the learned trial magistrate erred in dismissing the Appellant's counterclaim for rent arrears and what orders should consequently issue, including as to costs. Analysis and Determination ELCLA E036 OF 2026 10

page 10 of 17

i. Whether the appeal is competent notwithstanding the absence of a formal certified decree 25. The Respondents submitted that the appeal is incompetent and ought to be struck out for want of a certified decree. The Appellant, on the other hand, maintained that the appeal was properly instituted and relied on the supplementary submissions filed pursuant to the ruling of Hon. Justice A. C. Mrima. The record shows that the issue was previously raised before Hon. Lady Justice C. Meoli on 16th June 2023 when the matter came up for Notice to Show Cause. On that occasion, the Court considered the status of the record of appeal and proceeded on the basis that the certified judgment on record was sufficient for purposes of the appeal. 26. The starting point is Section 2 of the Civil Procedure Act, which defines a decree and expressly provides that, for purposes of appeal, a decree includes a judgment and a judgment shall be appealable notwithstanding that a formal decree has not been drawn up or is incapable of being drawn up. The effect of that provision is that the absence of a formal decree is not necessarily fatal where a certified judgment capable of conveying the decision appealed from is on record. 27. Article 159(2)(d) of the Constitution enjoins courts to administer justice without undue regard to procedural technicalities. In the present case, the appeal was admitted for hearing, directions were subsequently issued by ELCLA E036 OF 2026 11

page 11 of 17

the Court and the matter proceeded to the stage of judgment before the issue was revived by the Respondents. More importantly, the judgment sought to be challenged was available on the record and sufficiently disclosed the rights and obligations determined by the subordinate court. 28. In the circumstances, and guided by Section 2 of the Civil Procedure Act, I am not persuaded that the appeal is incompetent for want of a formal certified decree. The preliminary objection on competency therefore fails and I find that the appeal is properly before this Court. ii. Whether the learned trial magistrate erred in law and fact in allowing the Respondents to offset the alleged cost of renovations and improvements against rent arrears contrary to the terms of the lease agreement 29. There is no dispute that the relationship between the parties was governed by a written lease agreement dated 28th September 2016. Equally undisputed is the fact that the lease contained an express provision regulating alterations, additions and improvements to the leased premises. 30. Under Clause 3(q) of the lease, the tenant was prohibited from undertaking any alterations or additions without the prior written consent of the landlord, and any alterations, installations or improvements carried out on the premises were to become the property of the landlord upon ELCLA E036 OF 2026 12

page 12 of 17

termination of the tenancy without any obligation on the part of the landlord to compensate the tenant. The learned trial magistrate correctly appreciated the existence of that provision but nonetheless proceeded to hold that the Respondents were entitled to offset the alleged renovation expenses against rent arrears on the basis of the parties' conduct. In my view, that finding cannot be sustained. 31. The law is settled that courts do not rewrite contracts for parties. In National Bank of Kenya Limited Vs Pipeplastic Samkolit (K) Limited & Another [2001] eKLR, the Court of Appeal held that parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved. Similarly, in Savings and Loan (K) Limited Vs Mayfair Holdings Limited [2012] eKLR , the Court emphasized that the intention of parties to a written agreement must be ascertained from the document itself and that courts must give effect to the objective meaning of the words used by the parties. The lease before the Court expressly required written consent before any improvements could be undertaken. The Respondents did not produce any evidence demonstrating that such consent was ever sought or obtained. Consequently, the learned trial magistrate erred in invoking the doctrine of conduct to override clear and unambiguous contractual provisions. 32. Even assuming that the Respondents incurred expenses in carrying out improvements, the claim for reimbursement was in the nature of special ELCLA E036 OF 2026 13

page 13 of 17

damages and therefore required strict proof. The record reveals that the Respondents principally relied on an internal document described as an “Expenditure by Category Summary” to support their claim of approximately Kshs. 1,699,000/- allegedly expended on renovations. No independent evidence was tendered to specifically demonstrate that the amount claimed was incurred in renovating the suit premises. 33. In Aliff Construction Company Limited Vs County Government of Tana River & Another [2019] eKLR , the Court of Appeal reiterated that special damages must not only be specifically pleaded but must also be strictly proved. The same principle was affirmed in Kenya Tourist Development Corporation Vs Sundowner Lodge Limited [2018] eKLR. I therefore find that the Respondents failed to strictly prove the alleged renovation costs and, in any event, the lease agreement did not entitle them to offset such costs against rent arrears. Accordingly, I find that the learned trial magistrate erred in law and in fact in allowing the Respondents to offset the alleged costs of renovations and improvements against rent arrears contrary to the express terms of the lease agreement. iii. Whether the learned trial magistrate erred in dismissing the Appellant's counterclaim for rent arrears and what orders should consequently issue ELCLA E036 OF 2026 14

page 14 of 17

34. Having found that the Respondents were not entitled to offset the alleged renovation expenses against rent arrears, it follows that the propriety of the dismissal of the Appellant's counterclaim must be reconsidered. The record shows that the learned trial magistrate expressly found that the existence and terms of the lease agreement were not disputed, that rent arrears were due and owing, and that the lease required the prior written consent of the landlord before any improvements could be undertaken. 35. Despite those findings, the learned trial magistrate proceeded to dismiss the counterclaim without assigning any legal basis for doing so. With respect, once the claim for set-off failed, there remained no lawful justification for denying the Appellant recovery of the rent arrears established by the evidence and provided for under the lease agreement. 36. As a first appellate court, I am obligated to re-evaluate the evidence on record and arrive at my own independent conclusions. Having done so, I find that the Appellant proved, on a balance of probabilities, the claim for rent arrears in the sum of Kshs. 1,628,000/-. I further find that the learned trial magistrate misapprehended both the facts and the law in dismissing the counterclaim notwithstanding the evidence before the court. The dismissal of the counterclaim therefore cannot stand. ELCLA E036 OF 2026 15

page 15 of 17

Disposition 37. In the result, having carefully considered the Memorandum of Appeal, the Record of Appeal, the parties' written submissions, the supplementary submissions and the applicable law, I find that the appeal is meritorious. 38. Accordingly, the Court makes the following orders: a) The appeal is hereby allowed. b) The judgment and decree of Hon. D.M. Kivuti (Principal Magistrate) delivered on 10th September 2021 in Nairobi CMCC No. 9519 of 2019 are hereby set aside. c) Judgment is hereby entered in favour of the Appellant on the counterclaim in the sum of Kenya Shillings One Million Six Hundred and Twenty-Eight Thousand (Kshs. 1,628,000). d) The said sum shall attract interest in accordance with the terms of the lease agreement and the law. e) The Appellant shall have the costs of the suit before the subordinate court and the costs of this appeal. ELCLA E036 OF 2026 16

page 16 of 17

It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on this 16th day of June, 2026. MOHAMMED N. KULLOW JUDGE Judgment delivered in the presence of: Mr. Odek for the Appellant N/A for the Respondents Philomena W. Court Assistant ELCLA E036 OF 2026 17

page 17 of 17