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ELCDismissedEldoret BPRT Appeal (from Eldoret BPRT Cases No. 82–88 of 2015)· [2025] KEELC 150 (KLR)

Mbarak Salim Jumaan (Suing in his Capacity as the Legal Representative and Administrator of the Estate of Salim Mbarak (Deceased) t/a Bismilahi Lengut Hotel & 6 others v Hasham Lalji Properties Ltd (Environment and Land Appeal 1 of 2018) [2025] KEELC 150 (KLR)

Environment and Land Court
23 January 2025
2,808 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 upheld a tribunal's market-rent increase against Tuskys tenants, confirming rent hikes take effect from the date stated in the landlord's notice.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Thika against the decision of Hon. Mbichi Mboroki, Chairman of the Business Premises Rent Tribunal, delivered on 4th November 2016 in Eldoret BPRT Cases Nos. 82–88 of 2015. The dispute arose from a landlord's notice dated 12th October 2015 increasing monthly rents with effect from 1st January 2016 on the ground that prevailing rents were below market rate. The tenants objected and filed references at the Tribunal, which were determined on the basis of rival valuation reports and written submissions: the tenants' valuer recommended Kshs. 617 per square meter per month, the landlord's valuer Kshs. 917, and the Tribunal adopted the average of Kshs. 767 (half rate Kshs. 383.5 for other lettable areas) with effect from 1st January 2016. On appeal, the tenants argued that the Tribunal failed to notify them of judgment delivery, applied wrong principles resulting in exorbitant increases (ranging from 166% to 348%), and wrongly made the increment retrospective. The court held that the failure to issue a notice of delivery of judgment did not invalidate the judgment, that the Tribunal properly assessed rent having regard to section 9(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and comparable market evidence, and that the effective date of 1st January 2016 was the date specified in the tenancy notice which the Tribunal could adopt in its judicial discretion. The fair-hearing complaint also failed since the appellants were represented and had agreed to determination by valuation reports and written submissions. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether failure to issue a notice of delivery of judgment invalidates the Tribunal's judgment

Holding

It does not invalidate the judgment, since it was unjust to fault the Chairman where the appellant did not disclose whether he or his advocate was present when the new judgment date was fixed

Reasoning

The judgment was originally scheduled for 22.7.2016 but was not delivered; the proceedings of that date are missing and it is unclear whether the new date was fixed in the presence of the parties. The judgment was delivered in the presence of only the Respondent's advocate. Since the appellant did not disclose his own presence on 22.7.2016, it would be unjust to fault the Chairman for failing to issue notice, and the omission does not invalidate the judgment.

p. 4
02

Principles for assessing rent payable under section 9(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

Holding

The Tribunal properly assessed rent by averaging the two valuers' rates (Kshs. 917 and Kshs. 617 per square meter per month to yield Kshs. 767), having regard to open market comparables; the increase was neither unreasonable nor exorbitant

Reasoning

The Tribunal considered both valuation reports, noted that the landlord's comparables were from superior premises in the Eldoret CBD, that neither report disclosed effective dates of comparable rents, and adopted the average as fair open market rent. The court found the assessment based on evidence, considering size, location, age, condition, construction material and proximity of comparables, and not abnormal or astronomical.

p. 5
03

Whether the rent increment could take effect retrospectively from 1st January 2016

Holding

The Tribunal acted within its discretion; the effective date of 1st January 2016 was the date specified in the tenancy notice, and delay in determining a reference is not sufficient ground to alter it

Reasoning

Relying on Tala Investment Ltd v Green Spot Limited, the court held that the normal effective date is that specified in the tenancy notice, though the Tribunal may alter it in proper circumstances exercised judicially. Since 1st January 2016 was the date in the tenancy notice, the Tribunal exercised its discretion judiciously and this ground of appeal lacked merit.

p. 6
04

Whether the appellants were denied a fair hearing

Holding

No; the appellants were represented by counsel and had agreed to determination by valuation reports and written submissions, both of which were filed on their behalf

Reasoning

The parties mutually agreed that the cases would be determined by valuation reports and written submissions rather than oral testimony. The appellants were at liberty to present all details they wished considered, including period of tenancy and type of business, but chose not to. The claim of being condemned unheard therefore failed.

p. 6

Legal principles established

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  • A first appellate court's mandate to reappraise evidence does not entail taking on board new issues never raised before the trial court or tribunal
  • The reasonableness of the rent must be in the forefront of a tribunal's investigations and determination, and average rates of nearby similar premises are relevant to assessing open market rent
  • The normal order for the effective date of a rent increase is the date specified in the tenancy notice, though the Tribunal has discretion to alter it, exercisable judicially
  • A party cannot claim to have been condemned unheard where it was represented by counsel and agreed to determination by valuation reports and written submissions

Court orders

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  1. 1.The Amended Appeal dated 12.04.2023 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 9(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 10, 47, 48 and 50

Cases cited (3)

  • Ol Pejeta Ranching Limited vs David Wanjau Muhoro
    [2017] eKLR
  • Cleaners Limited –vs.- Barclays Bank DCO
    [1972] EA 188
  • Tala Investment Ltd Vs Green Spot Limited
    Civil Appeal No. 269 of 1993
On appeal from
Business Premises Rent Tribunal (Hon. Mbichi Mboroki, Chairman)
Eldoret BPRT Cases No. 82–88 of 2015
Jurisdiction invoked
First appellate jurisdiction over the Business Premises Rent Tribunal under the 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, "Mbarak Salim Jumaan (Suing in his Capacity as the Legal Representative and Administrator of the Estate of Salim Mbarak (Deceased) t/a Bismilahi Lengut Hotel & 6 others v Hasham Lalji Properties Ltd (Environment and Land Appeal 1 of 2018) [2025] KEELC 150 (KLR)", Case Analysis (2025). Eldoret BPRT Appeal (from Eldoret BPRT Cases No. 82–88 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/150/eng@2025-01-23

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