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ELCDismissedCivil Appeal 31 of 2019· [2023] KEELC 19302 (KLR)

Concept Holdings Limited t/a Dashcam Center and Pun Grub v Azalea Holdings Limited

Environment and Land Court
27 July 2023
MMM.D. Mwangi
3,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed the BPRT can only hear cases about short-term or informal tenancies, so tenants with long written leases must go elsewhere.

What this practically means

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Executive summary

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The appellant tenant filed a reference before the Business Premises Rent Tribunal seeking an injunction against distress and eviction from premises on LR No.1159/466, Nairobi. The respondent landlord replied that the parties' relationship was governed by a written six-year lease commencing 1st December 2016 with no early termination clause, ousting the Tribunal's jurisdiction over what was not a controlled tenancy, and that the tenant was in rent arrears. By a ruling of 12th April 2019 the Tribunal upheld the preliminary objection, holding it raised a pure point of law on an admitted document meeting the Mukisa Biscuit threshold, and struck out the reference and application. On appeal, M.D. Mwangi J framed a single issue: whether the objection was a pure point of law and whether the Tribunal erred in upholding it. The court reaffirmed that the BPRT is a creature of Cap 301 limited to controlled tenancies, defined under Section 2(1) as tenancies not in writing or, if written, not exceeding five years or terminable within five years otherwise than for breach. The admitted six-year lease without a termination clause other than for breach meant the tenancy was not controlled, so the Tribunal lacked jurisdiction. The objection arose by clear implication from the pleadings and could even have been raised suo moto. The appeal was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Whether the jurisdictional objection was a pure point of law under the Mukisa Biscuit threshold

Holding

It was a pure point of law arising by clear implication from the pleadings, based on an admitted written lease

Reasoning

The lease was admitted, in writing, for six years, and lacked a termination clause other than for breach within five years. Under Section 2(1) of Cap 301 the tenancy was therefore not a controlled tenancy, ousting the Tribunal's jurisdiction. Since no fact needed ascertainment, the objection met the Mukisa Biscuit threshold and the Tribunal was justified in striking out the reference.

p. 6
02

Whether the BPRT had jurisdiction over the dispute

Holding

No; the Tribunal is a creature of statute limited to controlled tenancies, and the lease here created none

Reasoning

Cap 301 confines the BPRT to references concerning controlled tenancies. A controlled tenancy must either not be in writing, or if written, not exceed five years or contain a termination provision within five years. The parties' six-year written lease without an early termination clause fell outside the definition, so the Tribunal lacked jurisdiction to entertain the reference.

p. 4

Legal principles established

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  • The BPRT's jurisdiction is limited to controlled tenancies as defined in Section 2(1) of Cap 301
  • A jurisdictional issue may be raised by the court suo moto based on the pleadings
  • A written lease exceeding five years without a termination clause other than for breach is not a controlled tenancy

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Costs of the appeal to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActCap 301, Sections 2, 2(1), 6, 9, 12(1), 12(1)(a)-(n), 12(4), 13

Cases cited (11)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696

    Definition and threshold of a preliminary objection as a pure point of law

  • Selle & Another vs Associated Motor Boat Co. Ltd & others
    (1968) E.A. 123

    Duty of a first appellate court to re-evaluate evidence

  • Gitobu Imanyara & 2 others vs Attorney General
    (2016) eKLR

    First appellate court's duty to re-analyse evidence

  • Abok James Odera t/a A. J. Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates
    (2013) eKLR

    First appellate court's duty

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others
    [2012] eKLR

    Jurisdiction flows from the Constitution or legislation; courts cannot arrogate jurisdiction

  • Owners of Motor Vessel Lillian 'S' v Caltex Oil (Kenya) Limited

    Jurisdiction is everything; a court must down tools once it lacks jurisdiction

  • Republic v Business Premises Rent Tribunal & Another, Ex-Parte Albert Kigera Karume
    [2015] eKLR

    BPRT's jurisdiction limited to controlled tenancies

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

    Tribunal is a creature of statute; powers limited to those conferred

  • Anaclet Kalia Musau vs Attorney General & 2 Others
    [2020] eKLR, Civil Appeal 111 of 2017

    Jurisdictional issue can be raised suo moto by the court

  • Political Parties Dispute Tribunal & another vs Musalia Mudavadi & 6 others Ex Parte Petronila Were
    [2014] eKLR

    Court may take up jurisdiction issue on its own motion

  • Owners and Masters of The Motor Vessel 'Joey' vs Owners and Masters of The Motor Tugs 'Barbara' and 'Steve B'
    [2008] 1 EA 367

    Jurisdiction need not be raised by parties; court may act suo moto

On appeal from
Business Premises Rent Tribunal
BPRT Case No. 716 of 2018
Jurisdiction invoked
First appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Concept Holdings Limited t/a Dashcam Center and Pun Grub v Azalea Holdings Limited", Case Analysis (2023). Civil Appeal 31 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19302/eng@2023-07-27

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