Imbwaka t/a Busy Brains School Kakamega v Kwaji (Environment and Land Appeal E068 of 2024) [2026] KEELC 5125 (KLR)
The bottom line
#A Kenyan court upheld a landlord's right to full contractual rent but struck out an award that included future rent not yet due.
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 parties entered into a binding variation of the written lease agreement
- 2.Whether the respondent was estopped from demanding rent at the contractual rate of KShs. 65,000/= per month
- 3.Whether the respondent established his counterclaim for rent arrears
- 4.Whether the trial court erred in awarding rent that had not accrued by the date of judgment
- 5.What orders ought to issue
Key legal issues
#Whether the lease was varied to reduce rent from KShs. 65,000/= to KShs. 40,000/= per month
No binding variation was proved; the payments were irregular and consistent with part-payments
The lease fixed rent at KShs. 65,000/= per month. The party asserting variation bore the burden of proof. No written addendum, email or message recording a permanent variation was produced. The payments were irregular and varied in amount, consistent with part-payments from a tenant in financial difficulty rather than a settled reduced rent. The court declined to rewrite the bargain merely because performance had become difficult.
Whether promissory estoppel precluded the respondent from demanding the contractual rent
Estoppel was not established; acceptance of lesser sums on particular occasions does not surrender the contractual entitlement
Promissory estoppel requires an unequivocal representation, reliance, and inequity if resiled from. There was no clear representation that KShs. 40,000/= would replace the contractual rent for the remaining term. The inconsistent, irregular payments did not evidence an agreed new monthly obligation and could not, without more, displace the express lease term.
Whether the counterclaim for rent arrears was established
The counterclaim was upheld in principle, but the quantum could not stand as it included unaccrued rent
Rent arrears existed and, no variation or estoppel having been proved, the respondent was entitled to arrears computed at KShs. 65,000/= per month less payments made. However, the lease was subsisting at judgment and the award of KShs. 3,696,400/= included amounts for periods extending beyond rent that had fallen due, which was erroneous.
Legal principles established
#- On a first appeal, the court must reconsider, re-evaluate and analyse the evidence and draw its own conclusions while allowing for the trial court's advantage of seeing and hearing witnesses
- The party asserting a variation of a written contract bears the burden of proving it, and clear evidence is required where the writing states the material term alleged to have been altered
- Courts do not remake the parties' bargain merely because performance becomes difficult
- A money decree founded on a counterclaim for rent must ordinarily be confined to sums accrued, fallen due and ascertainable at the date of judgment; future rent under a subsisting lease is not presently recoverable absent termination or an acceleration clause
- Promissory estoppel requires a clear and unequivocal representation, reliance, and inequity if resiled from; mere acceptance of partial payments does not establish it
Court orders
#- 1.The finding of the trial court that there was no binding variation of the lease agreement is upheld
- 2.The dismissal of the appellant's substantive claim is upheld
- 3.The finding that the respondent was entitled to recover rent arrears under the lease is upheld
- 4.The order entering judgment for the respondent on the counterclaim in the sum of KShs. 3,696,400/= is set aside
- 5.The matter is remitted to the trial court to determine and enter judgment on the rent arrears that had accrued and were payable as at 30th September 2024, relying on the evidence on record, deducting all proved payments and entering judgment only for the net balance
- 6.No rent falling due after 30th September 2024 shall be taken into account in the computation or included in the judgment
- 7.The trial court may give limited consequential directions strictly necessary to implement the orders but shall not reopen the hearing or revisit the merits
- 8.Each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Kakamega
- CM ELC Case No. E260 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment in CM ELC Case No. E260 of 2023
Relief refused
#The appellant's appeal on the variation and estoppel grounds
The appellant failed to prove a binding variation of the lease or promissory estoppel
Recovery of unaccrued future rent under the subsisting lease
A money decree must be confined to sums accrued and ascertainable at the date of judgment; future rent is not presently recoverable absent termination or an acceleration clause
Costs
Each party shall bear its own 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.
A money decree founded on a counterclaim for rent must ordinarily be confined to sums that have accrued, fallen due and are capable of ascertainment at the date judgment is entered.
Rent which will become payable in the future under a continuing lease is not, merely by reason of an earlier default, converted into a presently recoverable debt.
A court does not remake the parties' bargain merely because the performance of the bargain later becomes difficult.
The order entering judgment for the respondent on the counterclaim in the sum of KShs. 3,696,400/= is set aside.
The matter is remitted to the trial court for the limited purpose of determining and entering judgment on the rent arrears, if any, that had accrued and were payable as at 30th September 2024.
No rent falling due after 30th September 2024 shall be taken into account in the computation or included in the judgment.
Each party shall bear its own costs of the appeal.
Issues in the judgment
#The judgment is dated 13th July 2026 while the trial judgment under appeal was delivered on 30th September 2024, an unusually long interval not explained in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Imbwaka t/a Busy Brains School Kakamega v Kwaji (Environment and Land Appeal E068 of 2024) [2026] KEELC 5125 (KLR)", Case Analysis (2026). Not stated in the judgment (first appeal from Kakamega CM ELC Case No. E260 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5125/eng@2026-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.