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ELCDismissedCivil Appeal (ELC Mombasa) - memorandum of appeal dated 17th February 2022· [2025] KEELC 1220 (KLR)

Said v Trustees of King Feisal Trust of Kenya (Environment and Land Appeal E008 of 2022) [2025] KEELC 1220 (KLR)

Environment and Land Court
12 March 2025
3,157 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a tenant's 15-year challenge to a rent increase, confirming the landlord's written notice was lawful.

What this practically means

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Executive summary

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This is a first appeal from the Rent Restriction Tribunal sitting in Rent Restriction Assessment Case No. 39 of 2009, decided by S. M. Kibunja, J of the Environment and Land Court, Mombasa, on 12th March 2025. The appellant, a tenant occupying one of two flats on Plot No. Mombasa/Block/XVI/212 & 211, appealed against the tribunal's ruling of 24th January 2022 dismissing his application dated 12th May 2010, which sought to reopen the tribunal's proceedings, revoke its decisions, and strike out the entire suit on grounds including want of jurisdiction (alleged business dominant user), absence of a trust deed or certificate of incorporation for the landlord, and an alleged unilateral rent increase from Kshs.4,500 to Kshs.20,000. The appellant raised four grounds, principally that the tribunal failed to give reasons contrary to Order 20 Rule 4 of the Civil Procedure Rules and failed to consider dominant user under section 5(1)(a) of the Rent Restriction Act. The court framed two issues: whether the appellant proved misapprehension or misapplication of the law by the tribunal, and costs. It found the tribunal indeed gave no reasons for its decision and set aside the ruling of 24th January 2022, but then considered the application afresh. It held the rent increase notice of 12th March 2010 complied with section 13(2) of the Rent Restriction Act, the premises were properly assessed as residential, and the appellant's delay over fifteen years defeated his claim. The appeal was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Whether the tribunal erred in failing to give reasons for dismissing the application dated 12th May 2010

Holding

The court found no reasons were given in the ruling of 24th January 2022 and, applying Order 20 Rule 4 of the Civil Procedure Rules, held the ruling should be set aside; however the court then considered the application afresh and reached the same result.

Reasoning

Order 20 Rule 4 requires judgments in defended suits to contain points for determination, the decision and the reasons. The tribunal's ruling stated only that the application was without merit. Applying the Court of Appeal's guidance in JMM v GNJ on the need to justify the exercise of discretion with reasons, the court found the failure to give reasons warranted setting aside the ruling. But since the court was seized of the matter as a first appeal, it proceeded to determine the application itself, concluding the appeal was unmerited.

p. 5
02

Whether the tribunal lacked jurisdiction for want of ascertainment of the dominant user of the premises

Holding

The argument failed; the appellant occupies a flat and the premises were properly assessed for residential purposes, and the appellant did not object to the assessment.

Reasoning

The appellant contended the premises comprised 13 shops and 2 flats with business as the dominant user, so the Business Premises Rent Tribunal was the proper forum. The court noted the tribunal officers who visited the premises confirmed it was being used as a residence, the assessment was conducted in the appellant's presence without objection, and the appellant occupies one of the flats. The rent was ultimately increased beyond the assessed figure, rendering the assessment issue inconsequential.

p. 4
03

Whether the notice of rent increase to Kshs.20,000/= was lawful

Holding

The notice of 12th March 2010 complied with section 13(2) of the Rent Restriction Act and was lawful.

Reasoning

Section 13(2) of the Rent Restriction Act provides that no rent increase is due or recoverable until the landlord serves a valid written notice of intention to increase the rent. The respondent notified the appellant on 12th March 2010 of the increase to Kshs.20,000/= with effect from 1st May 2010, and this was not disputed. The appellant never challenged the increase before the tribunal despite fifteen years having elapsed.

p. 6

Legal principles established

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  • A first appellate court must re-evaluate the evidence adduced before the tribunal and draw its own conclusions.
  • Where a tribunal or court fails to give reasons for its decision, the appellate court will interfere if satisfied the order made is wrong.

Court orders

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  1. 1.The appellant's appeal has no merit and is dismissed in its entirety
  2. 2.The appellant to pay the respondent's costs in the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 20 Rule 4
  • Rent Restriction RegulationsRegulation 11
  • Rent Restriction Act, Chapter 296 Laws of KenyaSection 5(1)(a)
  • Civil Procedure Rules, 2010Order 21 Rule 4 / Order 51
  • Rent Restriction Act, Chapter 296 Laws of KenyaSection 5(1)(m)
  • Rent Restriction Act, Chapter 296 Laws of KenyaSection 13(2)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27
  • Civil Procedure ActSection 78

Cases cited (7)

  • Kenblest Kenya Limited v Musyoka Kitema
    [2020] eKLR
  • Peter M. Kariuki v Attorney General
    [2014] eKLR
  • Ngui v Republic
    [1984] KLR 729
  • Susan Munyi v Keshar Shiani
    Civil Appeal No. 38 of 2002 (unreported)
  • Islam Ahmed Said v Trustees of King Faisal of Kenya (Civil Appeal No. 215 of 2010)
    [2016] eKLR
  • JMM v GNJ (Civil Appeal (Application) E014 of 2022)
    [2023] KECA 99 (KLR) (3 February 2023) (Ruling)
  • Civil Appeal No. 62 of 1974 (Court of Appeal authority cited in the tribunal's ruling of 7th September 2010)
On appeal from
Rent Restriction Tribunal
Rent Restriction Assessment Case No. 39 of 2009
Jurisdiction invoked
First appellate jurisdiction over the Rent Restriction Tribunal

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, "Said v Trustees of King Feisal Trust of Kenya (Environment and Land Appeal E008 of 2022) [2025] KEELC 1220 (KLR)", Case Analysis (2025). Civil Appeal (ELC Mombasa) - memorandum of appeal dated 17th February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1220/eng@2025-03-12

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