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ELCAllowedApplication dated 22/8/2024 in Appeal against BPRT Case No. E036 of 2024· [2024] KEELC 7330 (KLR)

Chege v Gakuru (Land Case Appeal E014 of 2024) [2024] KEELC 7330 (KLR)

Environment and Land Court
29 October 2024
KBK. Bor
2,034 words in judgment
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The bottom line

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Kenya's Environment and Land Court restored an evicted occupant to her property pending appeal, because she was never served with the eviction case.

What this practically means

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Executive summary

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By an application dated 22/8/2024, the Appellant sought restoration to possession of the half undivided commercial and residential share in L.R No. 6585/216 from which she was evicted on 29/7/2024 pursuant to ex parte orders of the Business Premises Rent Tribunal in BPRT Case No. E036 of 2024, pending her appeal to the Environment and Land Court. She contended she was never served with the BPRT reference or the eviction application and was condemned unheard; that her late husband purchased the half undivided share in 1990 under a sale agreement, ending any landlord-tenant relationship; and that the Tribunal therefore lacked jurisdiction. The Respondent maintained she was the landlord, that the termination notice and eviction application were duly served, that no reference was filed as required, and that the premises had been let to a third party, so restoration would occasion substantive loss. The Respondent also questioned the Appellant's right of appeal under Sections 6, 10, 12(4) and 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, relying on Gifted Hands School Limited v Mogul & Another. The court found the jurisdictional contentions unrefuted and held that the substantive questions - including whether an appeal lies against the BPRT's decision - belonged to the main appeal. Balancing the parties' competing claims of loss, it held restoration was in the interest of justice. The court ordered the Appellant's restoration to possession within three days, with costs of the application in the appeal. Judgment delivered virtually at Nanyuki on 29 October 2024 by K. Bor, Judge.

Key legal issues

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01

Whether the Appellant should be restored to possession of the suit property pending the appeal against the BPRT eviction orders

Holding

Yes - the court allowed restoration to possession within 3 days, balancing the competing claims of loss.

Reasoning

The Appellant claimed she was evicted ex parte without service of the BPRT reference and application, having occupied the property for over 34 years, allegedly as beneficial owner rather than tenant. The Respondent did not refute the contentions about non-service or the alleged sale to the Appellant's late husband. Weighing the Appellant's claimed homelessness and loss against the Respondent's concern for a third-party occupier, the court found restoration pending appeal to be in the interest of justice.

p. 4
02

Whether the BPRT had jurisdiction over the parties given the alleged absence of a landlord-tenant relationship

Holding

The jurisdictional question, including whether the Appellant was a tenant, is reserved for determination in the substantive appeal.

Reasoning

The Appellant contended that her late husband purchased half an undivided share in 1990, ending any tenancy, so the BPRT lacked jurisdiction. The Respondent did not refute this. The court held that these contentions, and whether an appeal lies against a Section 12(4) order, fall for determination in the substantive appeal, while noting that the jurisdictional question is properly before the ELC.

p. 3

Legal principles established

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  • An interim application to restore possession pending an appeal challenging the BPRT's jurisdiction is determined in the interest of justice where the applicant was allegedly condemned unheard and had long occupation.

Court orders

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  1. 1.The Appellant is allowed to take back possession of the half undivided commercial and residential premise on L.R No. 6585/216 that she was occupying prior to her eviction on 29/7/2024, within 3 days
  2. 2.Costs of the application to be in the appeal

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 15
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 6
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 10
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 12(4)

Cases cited (1)

  • Gifted Hands School Limited v Mogul & Another
    (ELC Case Civil Suit 047 of 2022) [2022] KEELR 2770 (KLR) (7 July 2022) (Judgment)
On appeal from
Business Premises Rent Tribunal (BPRT)
BPRT Case No. E036 of 2024
Jurisdiction invoked
Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Section 15 (appeals from BPRT to the Environment and Land Court)

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, "Chege v Gakuru (Land Case Appeal E014 of 2024) [2024] KEELC 7330 (KLR)", Case Analysis (2024). Application dated 22/8/2024 in Appeal against BPRT Case No. E036 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7330/eng@2024-10-29

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