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ELCAllowedMemorandum of Appeal dated 16th March 2020 (appeal against ruling of BPRT Chairman in Tribunal Case No. 125 of 2019 consolidated with Nos. 1069 of 2019 and 1225 of 2019)· [2024] KEELC 3391 (KLR)

Kahora v Mbariah & 3 others (Environment and Land Appeal 13 of 2020) [2024] KEELC 3391 (KLR)

Environment and Land Court
22 April 2024
OAO. A. Angote
2,867 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled Tribunal orders issued without hearing the tenant, sending the case back for a proper full hearing.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Nairobi against the ruling of the Chairman of the Business Premises and Rent Tribunal delivered on 13th March 2020 in Tribunal Case No. 125 of 2019, consolidated with Tribunal Case Nos. 1069 of 2019 and 1225 of 2019, all concerning the Appellant's tenancy of Shop No. 1, 'Magic B' Building at Innercore Umoja. The impugned orders directed the Landlord to release the Appellant's property, refund her deposit of Kshs. 15,200, pay Kshs. 20,000 for renovations, and handed over possession of the premises to the 4th Respondent, Teresia Wambui Irungu, with effect from 14th March 2020. The Respondents argued the appeal record was incomplete and that the impugned order amounted to a consent order. The court framed a single issue: whether the Tribunal properly issued the orders of 13th March 2020. Reviewing the Tribunal's record, the court found a disconnect between the orders and the 4th Respondent's application of 2nd March 2020 (which merely sought an earlier inspection date), no indication that parties were heard, and no inspection report. The suits were yet to be heard on merits, yet the impugned orders were final in nature and disposed of the substance of the consolidated suits. The Tribunal thus dealt with extraneous matters, infringed the Appellant's right to fair hearing under Articles 47 and 50 of the Constitution, and its renovation award was speculative. The appeal succeeded; the impugned orders were set aside and the consolidated Tribunal cases were referred back for hearing and final determination, with costs of the appeal to the Appellant, payable by the Respondents.

Key legal issues

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01

Whether the Tribunal's orders of 13th March 2020 were issued regularly and in accordance with fair hearing rights

Holding

The orders were irregular: they were final in nature, disposed of the substance of the consolidated suits, and were issued without a hearing or inspection, denying the Appellant fair hearing under Articles 47 and 50 of the Constitution.

Reasoning

The Tribunal's record was silent as to any hearing on 13th March 2020, and there was a disconnect between the orders issued and the 4th Respondent's application for an early inspection date. The orders addressed the validity of the Appellant's tenancy, effectively disposing of the consolidated suits which had not been heard on merits. The Tribunal thus dealt with extraneous matters not before it and infringed the Appellant's right to fair hearing.

p. 6
02

Whether the Tribunal could award compensation for renovations without an inspection report or evidence

Holding

No. The assessment of Kshs. 20,000 for renovations was speculative and made before hearing the parties, a serious error of law.

Reasoning

The Tribunal had ordered an inspection of the premises but the inspection was never undertaken and no report was on record. In the absence of an inspection report or submissions on costs, the Tribunal could not ascertain the state of the premises or the extent of renovations claimed, yet proceeded to fix compensation, which the court found speculative and erroneous.

p. 6

Legal principles established

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  • A court or tribunal is bound by the pleadings of the parties and may not determine matters not raised before it, as doing so denies the party a fair hearing.
  • A tribunal that issues final orders on the core subject matter of a dispute without hearing the parties infringes the right to fair hearing, and such orders are irregular and must be set aside.

Court orders

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  1. 1.The orders of the Hon. Chairman of the Business Rent Tribunal Court at Nairobi delivered on 13th March 2020 in Tribunal Case No. 125 of 2019 as consolidated with Tribunal Case No. 1069 of 2019 and Tribunal Case No. 1225 of 2019 are hereby set aside
  2. 2.Tribunal Cases No. 125 of 2019 as consolidated with Tribunal Case No. 1069 of 2019 and Tribunal Case No. 1225 of 2019 are referred back to the Business Premises and Rent Tribunal for hearing and final determination
  3. 3.The Respondents shall bear the costs of the Appeal
On appeal from
Business Premises and Rent Tribunal
Tribunal Case No. 125 of 2019 (consolidated with No. 1069 of 2019 and No. 1225 of 2019)
Jurisdiction invoked
First appellate jurisdiction over the Business Premises and Rent Tribunal under Cap 301 (Landlord and Tenant (Shops, Hotels and Catering Establishments) Act)

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, "Kahora v Mbariah & 3 others (Environment and Land Appeal 13 of 2020) [2024] KEELC 3391 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 16th March 2020 (appeal against ruling of BPRT Chairman in Tribunal Case No. 125 of 2019 consolidated with Nos. 1069 of 2019 and 1225 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3391/eng@2024-04-22

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