Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment· [2021] KEELC 2146 (KLR)

Martin Zakayo Mbandu v Trishul V Chohan & another [2021] KEELC 2146 (KLR)

Environment and Land Court
16 July 2021
AOAntony Ombwayo
2,012 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court, not the rent tribunal, decides disputes involving alleged illegal change of property use from residential to commercial.

What this practically means

#

Executive summary

#
The plaintiff landlord sued the 1st defendant tenant for eviction from KISUMU MUNICIPALITY/BLOCK 4/757 and 758 following expiry of a two-year written lease granted on 2 January 2013 and expiring 1 January 2015 at a rent of Kshs 100,000. The plaintiff alleged the 1st defendant refused to vacate, never gave the three months' notice required to extend the lease, and unilaterally applied for change of user from residential to commercial without consent. Relief sought included eviction, a permanent injunction, and an order compelling the 2nd defendant to revert the user to residential. The 1st defendant filed a preliminary objection contending the court lacked jurisdiction because the lease was a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, so termination lay with the Business Premises Rent Tribunal, before which several references had been filed. Justice Antony Ombwayo considered the definition of a controlled tenancy under section 2(1) of Cap 301 and perused the lease, finding that clause 2 described the premises as a residential house with gardens and facilities, so any commercial use would require change of user determinable only by the Environment and Land Court. The court held the premises do not fall within section 4 of Cap 301 and that allegations of illegalities and infringement of the Physical and Land Use Planning Act take the dispute beyond the BPRT's mandate. The preliminary objection was dismissed with costs on 16 July 2021.

Key legal issues

#
01

Whether the premises constitute a shop within the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act so as to oust the ELC's jurisdiction

Holding

The premises are described in clause 2 of the lease as a residential house, so the question of commercial use required change of user and can only be determined by the ELC; the premises do not fall within section 4 of the Act

Reasoning

The court perused the lease agreement and found clause 2 describes the premises as a residential house including gardens and other facilities. Any commercial use would require change of user, a matter outside the BPRT. The court therefore held the premises fall outside section 4 of the Act, which governs termination of controlled tenancies of shops, hotels and catering establishments, and dismissed the preliminary objection.

p. 3
02

Whether the dispute exceeds the BPRT's mandate

Holding

The dispute involves allegations of illegalities and infringement of the Physical and Land Use Planning Act, taking it beyond the Tribunal's mandate

Reasoning

The plaintiff alleged the 1st defendant applied for change of user from residential to commercial without the landlord's written consent, contrary to sections 57 and 58 of the Physical and Land Use Planning Act. The court found such allegations of illegality place the matter beyond the BPRT and within the ELC's jurisdiction under Article 162(2)(b).

p. 3

Legal principles established

#
  • Where a dispute involves allegations of illegalities and infringement of the Physical and Land Use Planning Act, it exceeds the mandate of the Business Premises Rent Tribunal and falls to the Environment and Land Court

Court orders

#
  1. 1.The preliminary objection is dismissed with costs

Authorities

#

Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301Section 2(1); section 2; section 4; section 6
  • Physical and Land Use Planning ActSection 57(1); section 57(2); section 58(4)
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court Act, No. 9 of 2011
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya; Environment and Land Court Act No. 9 of 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Martin Zakayo Mbandu v Trishul V Chohan & another [2021] KEELC 2146 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2146/eng@2021-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.