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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether failure to issue a notice of delivery of judgment invalidates the Tribunal's judgment
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
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.
Principles for assessing rent payable under section 9(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
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
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.
Whether the rent increment could take effect retrospectively from 1st January 2016
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
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.
Whether the appellants were denied a fair hearing
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
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.
Legal principles established
#- 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
#- 1.The Amended Appeal dated 12.04.2023 is dismissed with costs to the Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.