Company & another v Kimani (Environment and Land Appeal E030 of 2024) [2026] KEELC 3744 (KLR)
The bottom line
#The Environment and Land Court upheld a Tribunal order requiring landlords to refund Kshs. 500,000 to a tenant, ruling it was a rent deposit, not goodwill.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Tribunal erred in law and fact in finding that the sum of Kshs. 500,000/= paid by the Respondent constituted a refundable rent deposit and not goodwill
- 2.Whether the Tribunal erred in imposing liability upon the Appellants, particularly the 2nd Appellant, in respect of the said sum
Key legal issues
#Nature of the Kshs. 500,000/= payment - refundable rent deposit or goodwill
The payment was a refundable rent deposit made in connection with the tenancy; the Appellants' goodwill claim was a bare assertion unsupported by any documentary evidence
The fact of payment was proved by certified bank statements showing an RTGS transfer on 21st October 2015 to the account of James Gichure Kionga, who executed the lease for the 1st Appellant. The Appellants produced no goodwill agreement, receipt, acknowledgement or sale of business evidence. The parol evidence rule was not violated because the payment was not a term of the written agreement. On a balance of probabilities, the Respondent's version prevailed.
Whether liability could be imposed on the Appellants, particularly the 2nd Appellant, for a payment received by the late James Gichure Kionga
No error: the claim was founded on the landlord-tenant relationship, and the payment was received through the person who acted for and represented the landlord
The claim arose from the tenancy relationship, not a personal transaction with the 2nd Appellant. The person who received the funds executed the lease on behalf of the 1st Appellant and dealt with the Respondent on tenancy matters. The Appellants, on whom Sections 109 and 112 of the Evidence Act placed the burden of proving the funds were received wholly outside the company's affairs, adduced no such evidence, so the Tribunal was entitled to infer the payment was received on behalf of the landlord.
Legal principles established
#- A first appellate court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
- Where the issue is the character of a payment not expressly addressed in a written agreement, the tribunal may consider surrounding circumstances and documentary evidence without violating the parol evidence rule
- A party asserting that a payment constituted goodwill bears the burden of proving that assertion, and a bare assertion unsupported by documents cannot discharge that burden
- Where facts are peculiarly within a party's knowledge, the burden of proving them rests on that party, and failure to adduce evidence permits an adverse inference
Court orders
#- 1.The appeal is dismissed
- 2.The ruling and orders of the Business Premises Rent Tribunal delivered on 12th November 2021 in Nairobi BPRT Tribunal Cause No. 986 of 2019 are upheld
- 3.The Respondent shall have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal (BPRT)
- Nairobi BPRT Tribunal Cause No. 986 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Business Premises Rent Tribunal
Relief refused
#Appellants' prayer that the appeal be allowed, the Tribunal's ruling be set aside and the Respondent's claim be dismissed
The Court found no error of law or fact in the Tribunal's findings that the Kshs. 500,000/= payment was a refundable rent deposit and that the Appellants were liable
Costs
The Respondent shall have the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the appeal is hereby dismissed.
The ruling and orders of the Business Premises Rent Tribunal delivered on 12th November 2021 in Nairobi BPRT Tribunal Cause No. 986 of 2019, Derrick James Kimani Vs Kionga Investments Company & Jane Njoki Gichure, are hereby upheld.
The Respondent shall have the costs of the appeal.
the Tribunal was entitled to consider the surrounding circumstances and documentary evidence in order to ascertain the character of that payment.
Issues in the judgment
#Internal chronology anomaly: submissions described as 'Supplementary Written Submissions dated 2nd April 2026' post-date the appeal hearing timeline and the judgment is dated 18th June 2026, while the Respondent's submissions are dated 17th April 2026; the April 2026 date for supplementary submissions is unusual relative to the July 2025 primary submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Company & another v Kimani (Environment and Land Appeal E030 of 2024) [2026] KEELC 3744 (KLR)", Case Analysis (2026). ELCA E030 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3744/eng@2026-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.