Ganjoni Properties Limited & 11 others v Al-Riaz International Limited; F. Kinyua Kamundi & Muyaa D. T t/a Kinyua Muyaa & Co. Advocates & 11 others (Affected Party) (Civil Appeal E090 & E091 of 2022 (Consolidated)) [2025] KECA 1711 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that landlord-tenant disputes involving protected commercial tenants belong to the Rent Tribunal, not the High Court, and voided lease clauses excluding that protection.
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 learned Judge was at fault in failing to determine the jurisdictional challenge before all else
- 2.Whether the trial court had jurisdiction to make the orders which the appellants are accused of having disobeyed
- 3.If the trial court had no jurisdiction, whether it had power to pronounce itself on any aspect of the suit and the interlocutory proceedings in issue
Key legal issues
#Whether the trial court erred in declining to determine the jurisdictional objection before all else
The learned Judge erred in electing to determine the jurisdictional challenge in tandem with the contempt proceedings instead of deciding it first
The appellants had raised jurisdictional challenges repeatedly from 20th November 2017. The objections contained pure points of law. Prior decisions of this Court and the Supreme Court establish that a jurisdictional challenge, once raised, must be determined in limine because a court without jurisdiction cannot make one more step. The trial Judge's choice to hear the contempt application together with the jurisdictional issue was, as a matter of principle and procedure, a decision in error.
Whether the High Court had jurisdiction over the landlord-tenant dispute between the parties
Prior to the respondent's eviction on 5th January 2018, the High Court had no jurisdiction; the dispute was the preserve of the Business Premises Rent Tribunal under section 12 of Cap. 301; after eviction, jurisdiction reverted to the Environment and Land Court
The respondent's lease terminated on 1st January 2015, whereupon the tenancy became a controlled tenancy governed by Cap. 301. The respondent was effectively a protected tenant between 1st January 2015 and 5th January 2018. Pleadings, not substantive merits, determine jurisdiction. The clause purporting to exclude the operation of the Act was void under section 3(6), as parties cannot contract out of statute.
Whether the clause in the expired lease excluding the provisions of Cap. 301 was effective
The clause was void because section 3(6) of the Act voids any agreement precluding the operation of the Act
Statutes designed to protect a class of persons are mandatory; parties cannot bypass them by private agreement. A contract attempting to contradict a statutory provision is void and unenforceable, on the authority of D. Njogu & Company Advocates v National Bank of Kenya Limited. The High Court could not therefore assume jurisdiction on the basis of such an agreement.
Legal principles established
#- A jurisdictional challenge must be determined before all else; a court without jurisdiction cannot take any further step in the proceedings
- Where a suit discloses a controlled tenancy under Cap. 301, the High Court has no jurisdiction over the dispute prior to eviction; jurisdiction is vested in the Business Premises Rent Tribunal under section 12 of the Act
- Parties cannot contract out of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act; any agreement purporting to preclude the operation of the Act is void under section 3(6)
- A contract that contravenes a statute is illegal, void ab initio and unenforceable
Court orders
#- 1.The ruling and orders of the High Court (Njoki Mwangi, J.) dated 15th July 2022 made in Mombasa HCCC No. 158 of 2014 be and are hereby set aside
- 2.The suit in Mombasa HCCC No. 158 of 2014 be and is hereby remitted to the Environment and Land Court at Mombasa for hearing and determination on a priority basis
- 3.The entire file and record in Mombasa HCCC No. 158 of 2014 shall be placed before the Presiding Judge of the Environment and Land Court at Mombasa, and mentioned within 45 days of the date of this judgment for the necessary directions to facilitate its expeditious hearing and determination
- 4.The Deputy Registrar of this Court shall take immediate steps to ensure transmission of this judgment together with the orders hereby made to the Presiding Judge of the High Court at Mombasa and the Presiding Judge of the Environment and Land Court at Mombasa to facilitate the expeditious transfer and hearing of Mombasa HCCC No. 158 of 2014
- 5.The parties in the consolidated appeals herein shall bear their own costs of the appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa HCCC No. 158 of 2014
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution of Kenya and section 3 of the Appellate Jurisdiction Act in an appeal from the High Court; underlying jurisdictional question governed by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Article 162(2)(b) and 165(5)(b) of the Constitution and the Environment and Land Court Act, 2011
- Consolidated with
- Civil Appeal No. E091 of 2022
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.
Jurisdiction is everything. Without it, a court has no power to make one more step.
we find that the 1st to 11th and the 12th appellants' appeals succeed and are hereby allowed.
The ruling and orders of the High Court (Njoki Mwangi, J.) dated 15 th July 2022 made in Mombasa HCCC No. 158 of 2014 be and are hereby set aside,
The suit in Mombasa HCCC No. 158 of 2014 be and is hereby remitted to the Environment and Land Courtat Mombasa for hearing and determination on a priority basis.
The parties in the consolidated appeals herein shall bear their own costs of the appeals.
the respondent was effectively a protected tenant within the meaning of Cap. 301 during the period between 1st January 2015 and 5th January 2018 when it was evicted
Issues in the judgment
#The judgment text contains visibly corrupted/garbled passages, including internal quotations of the impugned ruling and of the consent order (e.g. recitations that do not read as coherent English), casting doubt on the verbatim accuracy of some quoted material
The trial court's impugned ruling as reproduced contains contradictory paragraph numbering and duplicated paragraph labels (two paragraphs both numbered 38) and internally describes the 11th and 12th respondents as estopped in a passage that appears corrupted
The preliminary objection dated 20th November 2017 is recorded as challenging a ruling dated 24th August 2014, whereas the ruling of Mary Kasango, J. is otherwise dated 24th August 2015 - an internal date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Otieno v Kimani & another (Environment and Land Miscellaneous Case E008 of 2026) [2026] KEELC 2808 (KLR)[2026] KEELC 2808 (KLR)13 May 2026followed
Cite this brief
#Cite this brief
Caselaw, "Ganjoni Properties Limited & 11 others v Al-Riaz International Limited; F. Kinyua Kamundi & Muyaa D. T t/a Kinyua Muyaa & Co. Advocates & 11 others (Affected Party) (Civil Appeal E090 & E091 of 2022 (Consolidated)) [2025] KECA 1711 (KLR)", Case Analysis (2025). Civil Appeal No. E090 of 2022 (lead file) consolidated with Civil Appeal No. E091 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1711/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.