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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 7250 (KLR)

Masia & 2 others v Mwangi & another; Kimani & another (Interested Parties) (Environment & Land Case E080 of 2024) [2024] KEELC 7250 (KLR)

Environment and Land Court
30 October 2024
LMLucy N. Mbugua
1,381 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 ruled that a written six-year shop lease falls outside the Rent Tribunal, letting tenants pursue their rent dispute in court.

What this practically means

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Executive summary

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The Plaintiffs, long-standing tenants of the 1st Defendant on Plot No. 209/5810, filed three applications: a Notice of Motion dated 29.2.2024 seeking to restrain the 1st Defendant from levying distress; a Notice of Motion dated 1.3.2024 seeking review of directions and a restraint on distress on the basis that they were no longer within the Business Premises Rent Tribunal's jurisdiction following a letter of offer dated 29.5.2023; and a Notice of Motion dated 14.6.2024 seeking restraint of interference by the 1st Interested Party and leave to deposit rent in court. The 1st Defendant filed a Notice of Preliminary Objection dated 20.5.2024 contending that the tenancy is a controlled tenancy within the exclusive jurisdiction of the Landlord and Tenant Tribunal under Cap. 301, and that the unsigned offer letters are a nullity for failing Sections 3(3) of the Law of Contract Act and Section 44 of the Land Registration Act. The Plaintiffs countered that the offer letter created a 6-year written tenancy outside the Tribunal's jurisdiction and that the objection raised factual questions. The court, per Lucy N. Mbugua J, held that the offer letters dated 29.5.2023 constitute tenancy agreements for a 6-year term commencing 1.6.2023, thus not a controlled tenancy, and that the dispute - reconciliation of accounts from the date the rent increment took effect - falls within the court's jurisdiction. The preliminary objection was dismissed with each party bearing their own costs, and the parties were encouraged to explore alternative dispute resolution to reconcile the accounts.

Key legal issues

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01

Whether the tenancy is a controlled tenancy conferring jurisdiction on the Business Premises Rent Tribunal

Holding

The preliminary objection is dismissed; the offer letters created a 6-year written tenancy, which is not a controlled tenancy, so the court has jurisdiction

Reasoning

Section 2 of Cap. 301 defines a controlled tenancy as one not reduced into writing or reduced into writing but for a period not exceeding five years or with early termination provisions. The offer letters dated 29.5.2023, which the Tribunal directed the Plaintiffs to sign, constitute tenancy agreements for a term of 6 years commencing 1.6.2023. The Tribunal ruling was not appealed. The dispute is therefore an account-reconciliation question within this court's jurisdiction.

p. 3

Legal principles established

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  • A tenancy reduced into writing for a term exceeding five years is not a controlled tenancy within the meaning of Section 2 of Cap. 301, and the Tribunal has no jurisdiction over it
  • Where the tenancy ceases to be a controlled tenancy, the High Court/ELC retains jurisdiction over disputes such as reconciling rent accounts

Court orders

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  1. 1.The 1st Defendant's Notice of Preliminary Objection dated 20.5.2024 is dismissed
  2. 2.Each party to bear their own costs of the Preliminary Objection
  3. 3.Parties encouraged to explore alternative dispute resolution mechanisms to reconcile the accounts

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301Section 2
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301Section 12
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301Section 15
  • Law of Contract ActSection 3(3)
  • Land Registration ActSection 44

Cases cited (9)

  • Silverbird Kenya Limited v Junction Limited & 3 Others
    [2013] eKLR
  • Kangatta Properties Co Ltd v Charity Njeri t/a Winacom Crossline Supplies & 4 Others
    [2014] eKLR
  • Leo Investment Ltd v Estuarine Estate Ltd
    [2017] eKLR
  • Speaker of the National Assembly v Karume
    [2008] 1 KLR
  • Migiro v Paintmart and Allied Building Equipment (K) Limited
    (Civil Suit E448 of 2021) [2023] KEELC 18523 (KLR) (6 July 2023) (Ruling)
  • Ola Energy Kenya Limited v Rashid Opondo Otieno t/a Kisumu Breakdown Services Limited
    [2021] eKLR
  • KCB Ltd v Popatlal Madhanji Brothers Ltd & Another
    [2019] eKLR
  • Ram International Limited v Maasai Mara University
    [2021] eKLR
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court/Environment and Land Court; suit removed from Business Premises Rent Tribunal jurisdiction 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, "Masia & 2 others v Mwangi & another; Kimani & another (Interested Parties) (Environment & Land Case E080 of 2024) [2024] KEELC 7250 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7250/eng@2024-10-30

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