Amito v Odiwuor (Environment and Land Appeal E047 of 2022) [2024] KEELC 6361 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that renting bare land is not a 'controlled tenancy', so rent disputes over empty land belong in civil courts, not the Rent Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court had jurisdiction over the suit or whether the Business Premises Rent Tribunal had exclusive jurisdiction
The trial court was properly seized; the dispute was over a land lease, not a tenancy of a shop, hotel or catering establishment under Cap 301
The parties leased bare land parcel Kanyada/Kotieno Katuma 'A'/2991 with no buildings erected on it. A controlled tenancy under Section 2 of Cap 301 is a tenancy of a shop, hotel or catering establishment. Rent was for the land itself, not business premises, so the Tribunal lacked jurisdiction and the civil court was the proper forum.
Whether the lease was a controlled tenancy
No - the lease was in writing, for a term of five years, and related to bare land, so it fell outside the Section 2 definition
Section 2 defines a controlled tenancy as one of a shop, hotel or catering establishment that is unwritten, or written for a period not exceeding five years with termination provisions, or of a prescribed class. The agreement dated 25th May 2021 was for bare land; hence it was not a controlled tenancy and the Rent Restriction/Business Premises fora did not apply.
Whether the appeal should be allowed
The appeal lacked merit and was dismissed; the trial magistrate's ruling was affirmed
The learned trial magistrate was guided by the evidence and applied correct principles of law in holding that the Business Premises Rent Tribunal lacked jurisdiction over land leases and that the suit was properly before the court. The appellate court found no reason to disturb the ruling.
Legal principles established
#- The Business Premises Rent Tribunal is a creature of statute and has only such jurisdiction as is specifically conferred on it by statute
- Where the leased premises are bare land with no buildings, the tenancy is not a controlled tenancy under Cap 301 and the dispute belongs to the civil courts
- On a first appeal, the court must reconsider the evidence with caution and reach its own independent conclusions
Court orders
#- 1.Appeal dismissed with costs to the respondent
- 2.Ruling of the trial magistrate dated 30th September 2022 dismissing the preliminary objection affirmed
- On appeal from
- Homa Bay Chief Magistrate's Court, Environment and Land Court
- 89 of 2022
- Jurisdiction invoked
- Appellate jurisdiction from the subordinate court over a ruling on a preliminary objection (first appeal from the trial court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amito v Odiwuor (Environment and Land Appeal E047 of 2022) [2024] KEELC 6361 (KLR)", Case Analysis (2024). ELC Appeal (Homa Bay) - memorandum of appeal dated 3rd October 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6361/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.