Embu Gaturi Housing Co-op Society v George Thuo Tia Paramount Café & 2 others [2021] KEELC 435 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed landlords cannot evict tenants claiming demolition unless they genuinely intend to rebuild and can prove they can fund it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant had a genuine, firm and settled intention to demolish and reconstruct the suit premises
It did not. No member resolution was produced, and a fellow tenant (Roopman Limited) was renovating and offering goodwill to others while termination notices were pending, showing the true intention was to hand over the premises to that tenant.
The Appellant's chairman conceded in cross-examination that the alleged 2014 resolution to demolish was not before the court. Roopman Limited, a co-tenant, was not served with the termination notice, was renovating its space and installing CCTV, and its director offered goodwill to the 3rd Respondent to vacate - conduct inconsistent with imminent demolition and indicating a scheme to install Roopman Limited at higher rents.
Whether the Appellant had the financial resources to undertake the demolition and reconstruction
It had not demonstrated the resources. Only an 'indicative term sheet' for a Kshs.80 million loan, expressly not an offer letter, was produced against a projected cost of about Kshs.110 million, with no contractor financing evidence or bank offer letter.
The Appellant's own chairman confirmed under cross-examination that the term sheet was not an offer letter. The architect estimated the cost of the proposed eleven-storey building at about Kshs.110 million. The contractor was not called to confirm it would finance the project and no bank offered a loan. Consistent with Kobil Petroleum, the landlord must produce evidence of actual financial ability to carry out the intended purpose.
Whether the Tribunal Chairman applied the law correctly
He did. He analyzed the evidence against the statute and the governing case law, and properly exercised his discretion under Section 9 of Cap 301 in limiting the period for fresh notices to three months.
The court found the Tribunal Chairman identified the correct matters requiring proof - genuine intention and resources - and decided in line with Fisher v Taylors Furnishings and Kobil Petroleum. His discretion under Section 9 of Cap 301 in reducing the fresh-notice period to three months was properly exercised, and the Appellant never issued fresh notices because it knew it lacked a genuine intention to demolish.
Legal principles established
#- A landlord seeking to terminate a tenancy on the ground of intended demolition and reconstruction must prove a genuine, firm and settled intention and the financial resources to carry out the reconstruction
- In a first appeal, the court is obliged to re-evaluate the evidence and reach its own conclusions while allowing for the fact that it did not see the witnesses
Court orders
#- 1.The appeal is dismissed with costs to the Respondents
- On appeal from
- Business Premises Rent Tribunal
- Consolidated Tribunal Case Nos 579 of 2016, 580 of 2016 and 581 of 2016
- Jurisdiction invoked
- First appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) and the Civil Procedure Act regime for appeals
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.
- Kungu & 6 others v Gituthu (Environment and Land Appeal E228 of 2024) [2025] KEELC 6667 (KLR)[2025] KEELC 6667 (KLR)29 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Embu Gaturi Housing Co-op Society v George Thuo Tia Paramount Café & 2 others [2021] KEELC 435 (KLR)", Case Analysis (2021). ELC Appeal No. 55 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/435/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.