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ELCPartially AllowedAppeal - memorandum of Appeal dated 6th May 2025 (number not stated in judgment)· [2026] KEELC 2932 (KLR)

Chemutai v Kenya Women Microfinance Bank PLC (Land Case Appeal E013 of 2025) [2026] KEELC 2932 (KLR)

Environment and Land Court
20 April 2026
INDr. Iur Nyagaka
3,688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a Kshs. 525,000 rent claim because the landlord never proved who collected the rent or who lived on the property.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the trial magistrate, which had entered judgment for the Respondent (formerly plaintiff) in its suit against the Appellant (formerly defendant). The Respondent had alleged that after the Appellant bid Kshs. 2,450,000 for LR Kamagambo/Kongundi/1990, 1529 and 2098 at an auction arising from a borrower's loan default, paid only the 25% deposit of Kshs. 612,500 and failed to complete within 90 days, she nevertheless evicted the Chargor's tenants, installed her own and collected rent of Kshs. 17,500 per month from July 2021, totalling Kshs. 525,000 in mesne profits. The trial court granted the claim. On appeal, the court framed two issues: whether the trial court erred in awarding mesne profits, and in issuing eviction orders. Applying Sections 107, 109 and 112 of the Evidence Act and the rule that mesne profits are special damages to be strictly pleaded and proved, the court found that the only evidence of rent collection was inadmissible hearsay from a tenant who was not called as a witness; PW1 himself did not find the Appellant on the premises. Uncontroverted evidence does not discharge a plaintiff's burden. On the second issue, occupation not having been proven and the Appellant having already vacated, the eviction order could not stand, being overtaken by events. The court allowed the entire appeal and set aside the trial court's decision, but, noting the claim arose from the Appellant's failure to repay the loan, ordered each party to bear their own costs of the appeal. Judgment delivered virtually on 20th April 2026 by Hon. Dr. Iur Nyagaka, Judge.

Key legal issues

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01

Whether mesne profits of Kshs. 525,000 were proved

Holding

The trial court erred in awarding mesne profits because there was no cogent evidence of rent collection or occupation by the Appellant; the only evidence was inadmissible hearsay from a tenant not called as a witness

Reasoning

The claimant pleaded a specific rent figure of Kshs. 17,500 per month but called no tenant to testify. PW1 himself did not find the Appellant on the property; his knowledge of rent collection came from a tenant's statement, which is hearsay and inadmissible to prove its truth. Mesne profits being special damages, they had to be strictly proved; no receipts, statements or inquiry materials substantiated the figure. Uncontroverted evidence does not automatically discharge a plaintiff's burden of proof.

p. 7
02

Whether the eviction order could stand

Holding

The eviction order could not issue because occupation was never proven and the Appellant had already vacated

Reasoning

Since occupation of the property by the Appellant was not proven, the foundational basis for eviction collapsed. Further, no evidence was tendered showing she still resided on the property or had tenants there at the time of the claim, so the order was overtaken by events.

p. 7

Legal principles established

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  • Mesne profits are special damages which must be specifically pleaded and strictly proved
  • Evidence of rent collection by a person not called as a witness is inadmissible hearsay
  • A first appellate court must analyse and evaluate the evidence afresh while allowing for the trial court's advantage of seeing witnesses

Court orders

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  1. 1.The decision of the trial court is set aside
  2. 2.The entire Appeal succeeds
  3. 3.Each party to bear their own costs of the appeal
  4. 4.Orders accordingly
On appeal from
Trial court (magistrates' court)
Jurisdiction invoked
First appellate jurisdiction over appeal from the trial magistrates' court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chemutai v Kenya Women Microfinance Bank PLC (Land Case Appeal E013 of 2025) [2026] KEELC 2932 (KLR)", Case Analysis (2026). Appeal - memorandum of Appeal dated 6th May 2025 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2932/eng@2026-04-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.