Maithya v Mulwa t/a Skyview (Environment and Land Appeal E123 of 2022) [2024] KEELC 626 (KLR)
The bottom line
#A Kenyan court confirmed it had power to hear a landlord-tenant appeal, but sent the parties back to the tribunal so the real dispute could finally be decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction to hear the appeal without leave, given that the ruling arose from an interlocutory application under Order 51 Rule 1(1)
The Preliminary Objection was dismissed because the matter before the Tribunal was a reference under Section 6 of Cap 301, not a mere complaint, so an appeal lay as of right under Section 15(1)
Section 15(1) of Cap 301 confers a right of appeal on any party to a reference aggrieved by a Tribunal determination. The Respondent's claim that the matter was a complaint (E699 of 2021) was unsupported; the ruling itself described the proceedings as commenced by the Tenant's reference. The dispute went to the heart of the tenancy relationship, so it was not a mere complaint of the kind held unappealable in Gatanga General Store.
Whether the court should proceed to hear the appeal notwithstanding that jurisdiction existed
The court declined to determine the interlocutory appeal and summarily rejected it under Section 79B of the Civil Procedure Act to avoid hampering finalization of the reference before the Tribunal
The appeal was against an interlocutory application; premises had been closed since May 2022 and other applications were pending before the Tribunal. Hearing the appeal would greatly hamper finalization of the main reference, so the court exercised its power under Section 79B to reject the appeal summarily and remit the file.
Legal principles established
#- Only parties to a reference before the Business Rent Tribunal, aggrieved by a determination or order arising from the reference, have a right of appeal to the Environment and Land Court under Section 15 of Cap 301
- Matters incidental to protection of a protected tenancy may be dealt with at the level of minor complaints, and orders made in such complaints are unappealable
- Where the character of proceedings before the Tribunal is in doubt, the Tribunal's own characterization in the ruling appealed against governs
Court orders
#- 1.The Preliminary Objection is dismissed
- 2.The Appeal is struck off under Section 79B of the Civil Procedure Act
- 3.Each party is to bear their own cost of the Preliminary Objection and the appeal
- 4.The file is to be transmitted back to the tribunal forthwith for the hearing and determination of the reference
- On appeal from
- Business Rent Tribunal (Vice Chair Hon. Patricia May)
- Complaint E699 of 2021 (per Respondent's contention)
- Jurisdiction invoked
- Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 - appeal lies from a Tribunal reference to the Environment and Land Court
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.
- Sylvia Nene Emaase v Alphouncica Etyang[2026] KEELC 5937 (KLR)29 Sept 2026followed
Cite this brief
#Cite this brief
Caselaw, "Maithya v Mulwa t/a Skyview (Environment and Land Appeal E123 of 2022) [2024] KEELC 626 (KLR)", Case Analysis (2024). Not stated in the judgment (Tribunal complaint E699 of 2021 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/626/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.