Grenada Energy v Maundu [2025] KEBPRT 252 (KLR)

Grenada Energy v Maundu (Tribunal Case E002 of 2024) [2025] KEBPRT 252 (KLR) (17 April 2025) (Ruling)

Neutral citation: [2025] KEBPRT 252 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E002 of 2024

A Muma, Member

April 17, 2025

Between

Grenada Energy

Applicant

and

Felista Kanini Maundu

Respondent

Ruling

A. Parties and their Representatives 1. The Applicant, Grenada Energy Limited, has rented space for purposes operating a petrol station business (“the tenant”) erected on plot No, 27 situated on Old Town Mavoko within Machakos (the “suit property”)

2. The firm of B.V Francis & Associates Advocates is on record for the tenant.

3. The Respondent, Felista Kanini Maundu, (the ‘landlady) is the legal owner of the suit property.

4. The firm of Onwong’a Nyakeriga & Co. Advocates represents the landlady in this matter.

B. Background of the Dispute 5. This Honorable Tribunal delivered its Ruling on 27th August 2024. Consequently, the Tenant filed an Application dated 23rd September 2024 seeking orders that this Court issue orders to review, set aside/vary terms of its ruling delivered on 27th August 2024.

6. Following this the Landlady filed a Replying Affidavit dated 30th October 2024.

7. Subsequently, the tenant filed a further application dated 4th November 2024 seeking orders interalia that this Honorable Tribunal be pleased to grant leave to amend the application dated 23rd September 2024 and file additional documents. Which application was dismissed via a ruling on 22nd January 2025 as the evidence could have been obtained earlier. The Application for review dated 23rd September 2024 was allowed and parties asked to submit figures in 14 days each.

C. Tenant’s Case 8. The Tenant avers that it has provided sufficient documentation to prove the value of the property destroyed in its Supporting Affidavit dated 7th July 2024 with annexures dated 7th July 2024 with the documentation marked as Annexure HA 8.

9. The Tenant further states that it is at a risk of losing at least Kshs. 1,000,000. 00 which will be fatal to its business considering the events leading to the suit and economic challenges in the country.

10. It further avers that the averments made by the landlady asserting that she reimbursed the Tenant the sum of Kshs. 250,000. 00 as reimbursement for rent was false, and misleading. It further submitted that that the sum of KShs. 250,000. 00 was not reimbursed by the landlady but payment for something else.

D. LANDLADY’S CASE 11. The Landlady avers that the Tenant does not deserve any compensation as there is no evidence to substantiate its claims. That the only error on the face of the ruling is that the Tribunal failed to consider the evidence of refund of rent for months of June and July 2024.

12. The Landlady has annexed proof of refund and indicated the same on the last sentence of the M-Pesa message, a fact that the Tribunal failed to consider. She further avers that the Tenant produced invoices and quotations which is not proof of payment.

E. Issue for Determination 13. From the foregoing application and submissions, the only issue for determination in this matter is whether the Tenant is entitled to the special damages of Kshs. 1,463,482. 00.

F. Analysis and Determination 14. It is trite law that a claim for special damages have to be claimed and strictly proved by evidence. On this I am guided by the decision of the Court of Appeal in Richard Okuku Oloo v South Nyanza Sugar Co. Ltd (2013) eKLR where the Court held that:“We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of.”

15. Further, in Joseph Kipkorir Rono v Kenya Breweries Limited & Another Kericho HCCA No 45 of 2003, Kimaru, J held that:“In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law.”

16. Similarly, in Hahn v Singh, Civil Appeal No 42 of 1983 [185] KLR 716, the Court of Appeal held as follows;“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

17. In the matter herein, for the claim by the Tenant for Kshs. 815,600. 00 representing the costs for painting works and the installation of pylon signs at the Tenants premises. The tenant annexed supporting evidence in form of an invoice marked “HA-8”. For this claim, the Tenant did not sufficiently prove with a degree of certainty and particularity on the amount claimed because he failed to produce the actual receipts/cheques/mpesa/rtgs evidencing payments made pursuant to the invoice produced and shown to the court.

18. In the case of Linus Fredrick Msaky v Lazaro Thuram Richoro & another [2016] eKLR Justice Aburili stated that:In the case of damages to a motor vehicle, it was critical that the specific damages or the nature of the damage itself be pleaded and strictly proven. The court would not assess damages which are not specifically pleaded. Only a specialist and qualified motor vehicle assessor would have examined the vehicle and set out the exact damages before stating what parts required replacement or repair as the case may be. It was not enough for a garage to quote for repairs without an accident assessment report on the specific damages caused by the accident and the value estimated for each damaged part.

19. While we acknowledge that the Tenant may have inquired some costs with regards to maintenance and improvement of the petrol station, the quotation is not sufficient proof of payment. Therefore, the Tenant needs to provide receipts to proof that they actually paid the amount they are claiming.

20. For the claim by the tenant on the damaged petrol station signage of Kshs 397,882, the Tenant furnished this Tribunal with a KCB bank account statement which demonstrates the payment of Kshs. 198,800. 00, being the 50% deposit required for the installation of the signage as per the agreed terms. For this this particular claim, the Tenant has sufficiently proved the Kshs 198,800. 00 as per the standards prescribed in the cases above. The Tenant however did not prove the remaining amount of Kshs 199,882. 00. Instead sought to state that there being no complaints from the parties paid is sufficient evidence the payment was made. I respectfully disagree nothing would have been easier than showing a similar payment via bank, mpesa or receipt to evidence payment.

21. Further, for the claim of the refund for the rent of June and July 2024 of Kshs 260,000. 00 the Tenant sufficiently proved the same through the KCB Transfer document dated 9th August 2023 which is marked “HA 02” in the tenant’s affidavit dated 27th May 2024. The Tenant further attached a KCB statement of account dated 15th February 2024, marked as “HA-03” in the Tenant’s affidavit dated 27th May 2024. The landlord claims the same has been refunded and has annexed an mpesa message the averments by the tenant that the amount was for an assault case remains unproved as not agreement is provided or evidence towards that end.

G. Orders 22. In the upshot of the foregoing, the Tenant’s Application dated 20th February 2025 is partially allowed in the following terms;a.The Landlady shall pay the tenant Ksh 198,800. 00 being the cost of installation of the petrol signage;b.The Tenant shall have costs assessed at Ksh. 30,000/-

HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNALRuling dated, delivered and signed at Nairobi on this 17th day of April 2025 in the presence of Ogilla for the Tenant and No appearance for the Landlady.HON A. MUMAMEMBERBUSINESS PREMISES RENT TRIBUNAL