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ELCStruck OutCivil Suit E448 of 2021· [2023] KEELC 18523 (KLR)

Migiro v Paintmart and Allied Building Equipment (K) Limited

Environment and Land Court
6 July 2023
OAO. A. Angote
4,649 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a tenant's eviction case, ruling that business tenancy disputes belong to the Rent Tribunal, which can also grant injunctions.

What this practically means

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Executive summary

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The Plaintiff, a tenant operating a bar and restaurant (Club Citizen Vibro) on LR Number 209/10201, sought a temporary injunction restraining the Defendant landlord from terminating his tenancy or evicting him, alleging that the late principal shareholder had promised him a 10-year lease extension on the strength of which he made extensive improvements he had not recouped. The Defendant filed a preliminary objection contending that the tenancy, having lapsed in October 2021 and not being reduced into writing, was a controlled tenancy under Section 2(1) of the Landlords and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301, so that the Business Premises Rent Tribunal had exclusive jurisdiction. The Court framed two issues: its own jurisdiction and the injunction threshold. It found the parties were in a controlled tenancy and, acknowledging two conflicting schools of authority on whether the BPRT can grant injunctions, resolved the question in favour of the Tribunal's power, relying on Section 12(4) of the Act, the Court of Appeal decision in John Mugo Ngunga vs Margaret M Murangi, and Article 169 of the Constitution which categorizes tribunals as subordinate courts. Holding that the BPRT is duly vested with jurisdiction and that the ELC would overstep the Tribunal's mandate, the Court upheld the preliminary objection, struck out the application dated 23rd December 2021 and the suit, with no order as to costs.

Key legal issues

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01

Jurisdiction of the ELC over a dispute concerning a controlled tenancy

Holding

The Court lacks jurisdiction; the BPRT is vested with jurisdiction over the controlled tenancy dispute, including injunctive relief.

Reasoning

The lease lapsed in October 2021 and the tenancy is not reduced into writing, making it a controlled tenancy under Section 2 of Cap 301. Guided by Court of Appeal authority and Section 12(4) of the Act, the Tribunal may investigate any complaint relating to a controlled tenancy and make orders it deems fit, including injunctive orders. As a subordinate court under Article 169, the Tribunal can issue injunctions. The ELC must therefore down its tools.

p. 8
02

Whether the BPRT can grant injunctive orders

Holding

Yes - the Court resolved the conflicting authorities in favour of the Tribunal's power to issue injunctive orders.

Reasoning

The Court acknowledged two conflicting schools of thought. Relying on John Mugo Ngunga vs Margaret M Murangi and Thande Holdings, and on Section 12(4) of the Act, it held that the Tribunal may make such orders as it deems fit on complaints relating to controlled tenancies, which includes injunctive orders, and that as a subordinate court under Article 169 it has jurisdiction under Sections 3A and 40 of the Civil Procedure Act to issue injunctions.

p. 8
03

Whether the Plaintiff met the threshold for a temporary injunction

Holding

Not determined - the suit was struck out for want of jurisdiction before reaching the merits.

Reasoning

Having found that the BPRT is vested with jurisdiction over the dispute, the Court held that determining the injunction application would overstep the Tribunal's mandate and declined to consider the Giella v Cassman Brown threshold.

p. 8

Legal principles established

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  • A controlled tenancy not reduced into writing falls within the jurisdiction of the Business Premises Rent Tribunal, which may issue injunctive orders under Section 12(4) of Cap 301.
  • Where legislation provides a mechanism for redress, that mechanism should be strictly followed.

Court orders

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  1. 1.The application dated 23rd December, 2021 and the suit are struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1B, 3, 3A, 63(c) and (e), 40
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 2
  • Landlords and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301Sections 2(1), 2, 12, 12(4)
  • Environment and Land Court ActSections 13(1), 13(d), 13(7)(a)
  • Constitution of Kenya, 2010Articles 162(2)(b), 169
  • Evidence ActSection 120

Cases cited (22)

  • Giella vs Cassman Brown Co Ltd
    [1973] EA 358

    Principles for grant of temporary injunction

  • Republic vs Business Premises Rent Tribunal Ex-parte Albert Kigera Karume
    [2015] eKLR

    Held Tribunal has jurisdiction to issue injunctive orders

  • Re Hebtulla Properties Limited
    [1979] KLR 96; [1976-80] 1 KLR 1195

    Tribunal's powers limited to what Section 12 spells out

  • Amos Keireri Kanyugo vs Kireithi Trust
    [2017] eKLR

    Right forum for injunction is the High Court even where BPRT case pending

  • Moses N Gitonga & Another vs George Gathacea Kinyanjui & Another
    [2014] eKLR

    High Court proper forum for injunction orders

  • Serah Njeri Mwobi vs John Kimani Njoroge
    [2013] eKLR

    Doctrine of estoppel precludes assertion contrary to previous action or statement

  • Said Ahmed vs Mannasseh Denga & Another
    [2019] eKLR

    Party should not maintain advantageous position gained because he can pay for it

  • Joseph Siro Mosioma vs Housing Finance Company of Kenya Limited & 3 Others
    [2008] eKLR

    Damages cannot be substituted for loss occasioned by breach of law

  • John Mugo Ngunga vs Margaret M Murangi
    [2014] eKLR

    Tribunal has jurisdiction to issue injunctive orders

  • Republic vs Chairman Business Premises Rent Tribunal; Audio Corner Limited (Interested Party) Ex-parte Thande Holdings Limited
    [2020] eKLR

    Tribunal properly seized of dispute can issue injunctive or conservatory orders

  • Mukisa Biscuits Manufacturing Co. Ltd. vs West End Distributors
    (1969) EA 696

    Definition of preliminary objection as a point of law

  • Owners of Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Limited
    [1989] KLR 1

    Jurisdiction is everything; court without jurisdiction must stop

  • Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 Others
    [2013] eKLR

    Jurisdiction is a threshold question best taken at inception

  • Republic vs Business Premises Rent Tribunal & Another Exparte Davies Motor Corporation Limited
    [2013] eKLR

    Tribunal not empowered under Section 12 to grant injunctions

  • Italframe Ltd vs Mediterranean Shipping Co.
    [1986] KLR 54; [1986-1989] EA 174

    Courts cannot imply provisions to remedy legislative omissions

  • Narshidas & Company Limited vs Nyali Air Conditioning and Refrigeration Services Limited
    Civil Appeal No. 205 of 1995

    Tribunal has no jurisdiction to issue injunction against landlord

  • Caledonia Supermarket Ltd vs Kenya National Examinations Council

    Similar holding on Tribunal's lack of injunction jurisdiction

  • Tiwi Beach Hotel Ltd vs Julian Ulrike Stamn

    Similar holding on Tribunal's lack of injunction jurisdiction

  • Michael Gachie Mwarangu vs Peter Gichuru Maina & 2 Others
    [2016] eKLR

    Affirmed position that Tribunal cannot grant injunctions

  • Rent Restriction Tribunal V Raval Ex-parte Mayfair Bakeries Limited
    [1985] KLR 167

    Tribunal may investigate any complaint relating to tenancy

  • Republic vs Business Premises Rent Tribunal and Others ex parte Karasha
    [1979] KLR 147

    Cited in Narshidas on Tribunal's lack of injunction jurisdiction

  • Speaker of the National Assembly vs Karume
    (2008) 1 KLR (EP) 425

    Where a clear procedure for redress is prescribed, it should be strictly followed

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Migiro v Paintmart and Allied Building Equipment (K) Limited", Case Analysis (2023). Civil Suit E448 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18523/eng@2023-07-06

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