Nderi v Zubedi & another (Environment and Land Appeal E038 of 2023) [2025] KEELC 822 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed you can appeal a rent tribunal complaint decision, but a head landlord owes no tenancy duties to a subtenant without a direct contract.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal lies to the Environment and Land Court against a tribunal decision on a complaint under section 12(4) of Cap 301, as opposed to a reference under section 6
Yes. The preliminary objection based on section 15(1) was rejected; a party to a complaint is a party to a 'reference' and has a right of appeal, and section 16A of the Environment and Land Court Act confers jurisdiction on the court.
The court considered Re Hebtulla and Choitram, which restricted 'reference' to section 6 references, but held the legal position changed with the Environment and Land Court Act. Relying on Transallied and Gatimu Kinguru, the court adopted a purposive interpretation: the legislature intended section 16A to replace the old restrictive position, and jurisdiction of a superior court cannot be ousted by implication.
Whether the tribunal erred in finding it lacked jurisdiction over the appellant's complaint
No. The tribunal correctly found it lacked jurisdiction because there was no tenancy relationship between the appellant and the 1st respondent and the appellant was not in possession of the premises.
The definitions of landlord and tenant in section 2 of the Act were applied; no express tenancy agreement existed between the appellant and the 1st respondent and there was no privity of contract. The 2nd respondent was forbidden from subletting, and any orders made by the tribunal before determining jurisdiction were null and void, so no contempt could arise.
Whether the 1st respondent's duty to serve a termination notice on the appellant created a tenancy relationship
Although the 1st respondent ought to have served a termination notice on the appellant under section 5(2), that did not create privity of contract, and the appeal failed on the jurisdiction point.
The court acknowledged counsel's submission that a notice should have been served, and noted the 1st respondent's duty of care in that regard, including in relation to disposal of the appellant's goods. However, that duty did not establish a tenancy relationship, and compensation claims must be pursued before a trial court.
Legal principles established
#- A determination of a complaint referred to the Business Premises Rent Tribunal under section 12(4) of Cap 301 is appealable to the Environment and Land Court under section 15(1) of the Act; the word 'reference' in section 15(1) cannot be restricted only to references under section 6 of the Act.
- The restrictive approach in Re Hebtulla and Choitram no longer applies following the enactment of the Environment and Land Court Act and section 16A thereof, which must be given a purposive interpretation.
- Absent privity of contract, no tenancy relationship exists between a head landlord and a subtenant; the doctrine of privity of contract prevents a contract conferring rights or imposing obligations on non-parties.
Court orders
#- 1.That the 1st respondent's notice of preliminary objection is without merit and is rejected with costs to be borne by the 1st respondent
- 2.That the appellant has failed to establish the appeal on a balance of probabilities and it is hereby dismissed, with costs to be borne by the appellant
- On appeal from
- Business Premises Rent Tribunal
- Business Premises Rent Tribunal Case No. 244 of 2019 (Hon. Gakuhi Chege, Deputy Chairman)
- Jurisdiction invoked
- Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) as read with section 16A of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderi v Zubedi & another (Environment and Land Appeal E038 of 2023) [2025] KEELC 822 (KLR)", Case Analysis (2025). ELC Appeal (Mombasa) arising from Business Premises Rent Tribunal Case No. 244 of 2019; memorandum of appeal dated November 6, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/822/eng@2025-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.