In a civil case filed and registered on the 8th January this year at Machakos Resident Magistrate's
Court by Chibri Nyasani against Karanja Ole Razanga, the record of the hearing in the court case file, in its essential portions, omitting details not necessary for the present purpose, included the following evidence:
"Chibri Nyasani (PW1): I have sued Karanja Ole Razanga. He is my fellow Kenyan and my landlord at a building in Westlands, Nairobi which I use as a hotel with accommodation facilities, under a lease agreement entered into on 15th April, 2014 to last until 15th April, 2019. The lease agreement contained among other covenants, one which stated as follows:
'The landlord agrees to execute all outside and inside repairs of the said building which may be found necessary for a hotel in the course of reasonable wear.'
Two months later, by letter of 30th June, 2014 I informed Razanga that the glass roof and water pipes were leaking badly. So was the roof in the kitchen. Razanga sent his representatives and certain works were done in the glass roof, the gutterings and the kitchen roof. But because the glass roof was not made properly watertight the dining room flooded during the rains. Guests had to be moved out of the bedrooms owing to the leaking roof. The floor of the kitchen also required repair. Two guest rooms leaked, and the walls were cracked in several places. I gave verbal notice of the need of these further repairs. I suffered loss to the extent of Kshs.200,000 through loss of customers owing to the bad state of repair the hotel was in and owing to vacating the premises. I have brought this suit to claim this amount."
In answer to questions put to him in the course of cross-examination, he answered:
"I do not know the extent of the damage to the glass roof. My workers might have left the water-taps running all night, causing flooding. The experts who inspected the roof are not here to give evidence as to its condition. No attendant at the hotel has come to testify as to the state of customers or the state of the hotel in the rains and loss of customers."
There was no re-examination of Nyasani, and his Advocate announced the close of his client's case.
When Karanja Ole Razanga took the witness-stand to testify, he admitted the landlord-tenancy relationship under the said lease agreement. But he said:
"I did all the repairs which Chibri notified me. The alleged loss of customers is denied; but if there was any such loss, it had nothing to do with the state of the building and might have been due to other causes not related to the state of the building. I ask the court to dismiss this suit with costs. I so pray. That is all. I have no witnesses to call."
On the basis of the record of the evidence given on both sides,te a judgement on the above claim, the advocates on both sides having exhaustively argued their respective cases by merely repeating and emphasizing what their clients had said in their evidence, and Razanga not having been cross-examined.
IN THE REPUBLIC OF KENYA
RESIDENT MAGISTRATES COURT
MACHAKOS
CHIBRI NYASANI…………………………PLAINTIFF
VS
KARANJA OLE RAZANGA…………………DEFENDANT
FACTS
The plaintiff leased a building which he has been using as a hotel. The lease duration was from 15th April, 2014 to last until 15th April, 2019. The tenancy agreement stated that the defendant who is the landlord would occasionally repair damages that arise out of normal wear and tear. Two months after the agreement the glass and kitchen roof as well as pipes were leaking. The defendant repaired but it is alleged that the repairs weren’t sufficient as a result the leakage continued and spread to guest rooms and so occasioned the plaintiff loses amounting to KSH 200,000/=.
Plaintiff’s case
The plaintiff alleges that the defendant did not repair the wear and tear issues in a proper manner and therefore the leakage of water continued and as such occasioned the plaintiff loss amounting to KSH 200,000/=.
Defendant’s case
The defendant states that he did all the repairs and denies that there was any loss of customers as the same cannot be verified. The loss if any might be attributed to other causes and not wear and tear.
Issues for determination
Whether there was damage as regards wear and tear to the building?
The plaintiffs evidence that the damage was caused by wear and tear cannot be relied upon. This is because during cross examination the plaintiff could not tell whether the damage to the building was caused as a result of wear and tear. Wear and tear is the normal occasional deterioration related damage that arises from an asset. It is not clear whether the damage to the building was caused by the workers leaving tap water running all night, there are no expert witnesses to prove to the court whether the damage was caused by wear and tear, it is not clear the extent the glass roof was damaged and thus repaired and lastly there is no evidence before this court to show that there was an overall loss of the plaintiff’s client thus occasioning loss of the KSH 200,000/=.
The defendant alleges that all the damages related to wear and tear were done and as such any other which was not related to wear and tear was not done and thus may have occasioned the so called loss if it happened. This court finds that there is no evidence before it to prove that there were wear and tear damages, that the wear and tear damages were repaired. The plaintiff has failed on a balance of probabilities to prove the liability of the defendant as such the suit stands dismissed with costs.
I thank counsel for their well furnished submission.
Delivered on 10th February 2017
Justice ‘Learned Hand’
Before
Wakili Smart for the Plaintiff
Janjes Rezz for the Defendant
Omwami- Court clerk
Omwami- Court clerk
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