A.Z. Shah t/a Fashion Spot v Jan Mohammed Investment Limited (Civil Suit 513 of 2012)  KEHC 13876 (KLR) (Civ) (13 October 2022) (Judgment)
Neutral citation:  KEHC 13876 (KLR)
Republic of Kenya
Civil Suit 513 of 2012
CW Meoli, J
October 13, 2022
A.Z. Shah t/a Fashion Spot
Jan Mohammed Investment Limited
1.AZ Shah t/a Fashion Spot, (hereafter the plaintiff) the erstwhile tenant of Jan Mohammed Investment Limited, his former landlord (hereafter the defendant) seeking the sum of Kshs 2,018,362.10/- in respect of arrears of rent wrongly paid or rent overpaid; the sum of Kshs 135,000/- in respect of costs in the tribunal matter between them; interest on the foregoing at 14% pa from August 6, 1999 until payment in full; and costs of the suit.
2.It was averred that at all material times to the suit the defendant was the landlord of the premises situated on LR No 209/11612 along Moi Avenue, Nairobi (hereafter the suit premises) and the plaintiff occupied a shop on the suit premises as a tenant until July 31, 1999. That the plaintiff and other tenants had challenged the defendant’s increase of rent before the Business Premises Rent Tribunal (hereafter the tribunal) whose decision they also challenged by way of appeals in this court, namely, HCCA No 328 of 1999, HCCA No 342 of 1999, HCCA No 6 of 2000 and HCCA No 65 of 2000 (all consolidated).
3.Further that pursuant to the judgment of this court in the said appeals, the rent arrears paid by the plaintiff to the defendant in the sum of Kshs 2,032,800/-, pursuant to the decision of the tribunal were rendered an overpayment of rent and therefore, the defendant became liable to refund the plaintiff a sum of Kshs 2,018,362.10/- made up of arrears wrongly paid or rent overpaid, plus costs to the tune of Kshs 135,000/- in respect tribunal cause, as awarded by this court. It was thus averred that the defendant had failed to refund the amounts due to the plaintiff despite demand having been made.
4.On May 30, 2013, following a ruling of this court granting leave to amend the statement of defence, the defendant filed an amended statement of defence and set-off denying the key averments in the plaint and averred that only a sum of Kshs 500,000/- remains due and owing, after it carried out repairs upon the plaintiff vacating the suit premises in a state of neglect and disrepair, having y refused to repair the same. Pursuant to a subsequent application by the plaintiff, Onyancha J in a ruling delivered on June 16, 2015, struck out the defendant’s statement of defence and entered judgment in favor of the plaintiff against the defendant in the sum of Kshs 1,518,362/- with interest & costs. He ordered that the rest of the claim in the sum of Kshs 500,000/- being the set-off amount pleaded by the defendant should go to trial.
5.This is the residual claim that proceeded to full hearing, during which the plaintiff, Ashok Z Shah testified as PW1 and was the sole party to adduce evidence in the proceedings. He adopted his filed witness statement as his evidence-in-chief and denied that at the time he vacated the premises any demand was made of him to carry out any repairs. He asserted that the sum of Kshs 2,032,800 which he had paid to the defendant was obtained by way of a loan. He produced several exhibits including the court’s judgment in HCCA No 328 of 1999, HCCA No 342 of 1999, HCCA No 6 of 2000 and HCCA No 65 of 2000 (all consolidated) (P Exh 1),a letter dated 06.08.99 addressed to the defendant’s advocate (P Exh2),the demand notice dated August 1, 2012 (P Exh3) and a copy of statement of account for August 1999 in respect of his Barclays Bank account (P Exh4) in support of his case.
6.Under cross-examination by the defence counsel, he stated that he had not entered into a written lease with the defendant and that he was a sitting tenant. That his obligation on vacating the suit premises was to leave the said premises in good condition which he did, the defendant’s representative acknowledged the foregoing in writing. He said that he had vacated the suit premises in 1999 but had been compelled to obtain a loan facility to enable him to offset the outstanding rent sum. He asserted that his claim for 14% interest was based on the interest rate charged on his loan.
7.The defendant did not call any witness in support of its pleadings at the hearing of the suit.
8.Upon the close of the respective parties’ cases submissions were filed. The plaintiff’s submission was two pronged. Addressing the court on the first issue counsel cited Section 107(1) & 109 of the Evidence Act, the decisions in Karuru Munyoro v Joseph Ndumia Murage & Another, Nyeri HCCC No 95 of 1998 and Janet Kaphiphe Ouma & Another v Marie Stopes International (Kenya) HCCC No 68 of 2007 to assert that onus was on the defendant to prove the pleaded set-off. That the defendant did not adduce any evidence as to the expenses allegedly incurred on repairs and in the absence of such evidence, the averments in the defendant’s pleadings remain mere allegations, and that the plaintiff’s evidence was uncontroverted. Therefore, the defendant had not discharged the burden of proving repair expenses amounting to Kshs 500,000/- as pleaded in the set-off.
9.Submitting on the second issue counsel cited Section 26(1) of the Civil Procedure Act and the decision in Mukhisa Buiscuit Manufacturing Company Limited v West End Distributors Limited (1970) EA 469 to argue that the award of interest is discretionary and that on principle, a person who has been unfairly or unlawfully deprived of the use of his money is entitled to an award of interest. Counsel referred to the plaintiff’s P.Exh 4 in that regard to urge that the defendant ought to pay the plaintiff interest at the court rate of 14% per annum on the amount already paid, namely, Kshs 1,518,362.10/-, the balance of Kshs 500,000/-; and costs of the tribunal proceedings of Kshs 135,000/- as awarded by the High Court.
10.On the part of the defendant, counsel submitted that the plaintiff admitted his obligation as a tenant, of maintaining the interior of the suit premises in a good state of repair during the tenancy; and upon the expiry of the term of the lease to ensure that the interior of the suit premises was in a good state of repair and condition. Citing the provisions of Order 7 Rule 14 of the Civil Procedure Rules, counsel argued that the plaintiff was in breach of its obligation which necessitated repairs by the defendant on the suit premises at a cost of Kshs 500,000/-. Hence the defendant was entitled to set-off the said costs incurred. Concerning the issue of costs awarded by the tribunal, it was contended that the consolidated appeal before the High Court reversed the tribunal’s decision and dealt with the matter after which the monies rents found overpaid were refunded in full. That in the circumstances, the plaintiff was not entitled to the award of tribunal costs as sought in the plaint. In conclusion the court was urged to award the claim in the set-off with costs to the defendant.
11.This court has considered the pleadings as well as the submissions filed in respect of the matter. As noted in this judgment, vide a ruling delivered on 16.06.2015, this court struck out the defendant’s statement of defence to the tune of Kshs 1,518,362/- and entered judgment for the foregoing sum while proceeding to order that the rest of the claim go to trial. Therefore, the issues falling for determination is whether the plaintiff is entitled to the sum of Kshs 135,000/- in respect of arrears of the costs in the tribunal and interest thereon at 14% pa from August 6, 1999 until payment in full; and whether the defendant has proved the set-off on a balance of probabilities.
12.Pertinent to the determination of the said issues are the pleadings, which form the basis of the respective parties’ case before this court. In Wareham t/a AF Wareham & 2 Others v Kenya Post Office Savings Bank  2 KLR 91, the Court of Appeal stated in this regard that: -
13.The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act which provides that:
14.In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that:
15.At the hearing, the plaintiff who testified as PW1 adopted his witness statement whose key assertions were that:
16.Addressing the first issue for this court’s determination, the judgment on appeal from the tribunal (P Exh2) and upon which the plaintiff’s claim rests reads in part:
17.The plaintiff was clearly entitled pursuant to the consolidated judgment of this court and was awarded costs in respect of the tribunal proceedings. The issue of costs is therefore spent and cannot be the basis of a new cause of action as impleaded herein. Besides, there was no evidence that the said costs were assessed or taxed in the tribunal, which is the proper forum, if not the appeal, for the plaintiff to pursue his awarded costs. This court therefore finds that the tribunal costs cannot not lie in this cause.
18.On the second issue, the defendant’s set-off is made pursuant to Order 7 Rule 3 of the Civil Procedure Rules which provides that; -
19.In the amended statement of defence and set-off, the defendant had averred that; -
20.The Court of Appeal in Mumbi M'Nabea v David M Wachira  eKLR while discussing the standard of proof in civil liability claims in our jurisdiction had this to say;
21.Further, the Court of Appeal in Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another  eKLR, the Judges of Appeal held that;
22.The defendant failed to call any evidence whatsoever in support of the set-off pleaded in its defence and set-off and it was not open to the defendant’s counsel to attempt to supply evidence through submissions as she has done. The plaintiff on his part denied that any repairs were carried out upon his vacating the suit premises asserting to have left the premises in a good and tenantable condition. He said that the defendant’s representative acknowledged the foregoing in writing. The defendant’s set-off against the plaintiff’s claim is a special damage claim that ought to have been specifically proved.
23.The Court of Appeal in Nkuene Dairy Farmers Co-op Society Ltd & another v Ngacha Ndeiya  eKLR stated that;
24.The court applying its mind to the law and facts agrees with the plaintiff that the defendant failed to prove the set-off on a balance of probabilities. The set-off therefore fails. Pursuant to the finding, the plaintiff is entitled to the balance of Kshs 500,000/-, the subject of the defendant’s set-off. In the result, the plaintiff’s suit succeeds in part and judgment will be entered for the plaintiff against the defendant in the sum of Kshs 500,000/- in respect of arrears wrongly paid and or rent overpaid, with costs and interest effective from the date of the judgment on the appeal that is, October 14, 2008 until full payment.
25.The plaintiff had sought interest at 14% pa asserting to have procured a commercial loan to pay the defendant. However, no cogent evidence was tendered to show that the plaintiff had obtained a commercial loan to pay the rents and arrears demanded by the defendant based on the overturned tribunal decision. No nexus is apparent between the plaintiff’s bank account statement (P Exh 4) and the said payments. The sums awarded herein will therefore attract interest at court rates.
DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 13TH DAY OF OCTOBER 2022C.MEOLIJUDGEIn the presence of:For the plaintiff: Mr. Sala h/b for Mr. GathuFor the defendant: N/AC/A: Carol