Severin Sea Lodge (EA) Limited v Baracuda Kenya Limited (Environment and Land Appeal E042 of 2024) [2025] KEELC 3002 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that staying on after a licence expires and paying rent creates a protected business tenancy, and restored the higher rent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the tribunal had the jurisdiction to hear the dispute between Appellant and Respondent pursuant to the License to use agreement dated 20th September, 2021
- 2.Whether the appeal preferred by the Appellant has merit
- 3.Who will bear the costs of the Appeal
Key legal issues
#Jurisdiction of the BPRT over a dispute founded on a licence to use agreement
The Tribunal has jurisdiction because, after expiry of the licence agreement and continued payment/acceptance of rent without a new written agreement, a periodic tenancy arose which is a controlled tenancy under Section 2(1)(a) of the Act
The court found that the licence relationship terminated on expiry of the agreement on 30th September 2022. Thereafter the Respondent remained in occupation and paid rent accepted by the Appellant with no written agreement. Under Section 57(2) of the Land Act such occupation constitutes a periodic tenancy, and under Section 2(1)(a) of Cap. 301 an unwritten tenancy of a business premises is a controlled tenancy, bringing the dispute within Section 12 of the Act.
Whether the Tribunal could vary the rent to Kshs. 10,000/- in the interim order of 23rd February 2023
The Tribunal misdirected itself by varying rent when no such prayer was sought; that order was vacated and the Respondent directed to continue paying Kshs. 40,000/- per month
The court perused the Notice of Motion dated 20th January 2023 and found it contained no prayer for variation of rent. The Vice-Chair therefore overstepped his bounds by tackling a relief never sought. Further, the court declined itself to vary the new rate of Kshs. 40,000/- since doing so would amount to rewriting a contract for the parties.
Costs of the appeal
Each party to bear own costs since the matter was referred back to the Tribunal for full hearing
Though costs follow the event under Section 27 of the Civil Procedure Act, the court considered that the Tribunal had jurisdiction and the matter was being remitted for full hearing, so it was not necessary to impose costs on either party.
Legal principles established
#- Where occupation continues after expiry of a licence/lease without a written agreement and rent is accepted, a periodic tenancy arises under Section 57 of the Land Act, which is a controlled tenancy under Section 2(1)(a) of Cap. 301 within the Tribunal's jurisdiction
- The existence of a landlord-tenant relationship is a pre-requisite to the Tribunal's jurisdiction under the Act
- Courts cannot rewrite contracts for parties
Court orders
#- 1.BPRT has jurisdiction to hear and determine the matter under Sections 2(1) and 12 of the Act
- 2.The appeal be partially found to have merit
- 3.The interim order granted by the BPRT on 23rd February, 2023 varying rent from Kshs. 40,000/- to Kshs. 10,000/- be and is hereby set aside and/or vacated
- 4.The Respondent to continue paying Kshs. 40,000/- per month as commenced from October 2022
- 5.The suit is referred back to the Business Premises Rent Tribunal for hearing and determination of the other pending issues
- 6.The matter to be mentioned on 4th April, 2025 before the Executive Officer for directions
- 7.Each party to bear own costs of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal (BPRT) at Mombasa
- BTRT Cause No. 12 of 2023
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal pursuant to the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301; disposal under Section 79B of the Civil Procedure Act, Cap. 21 and Order 42 Rules 11, 13 & 16 of the Civil Procedure Rules, 2010
Relief refused
#Declaration that the Tribunal lacks jurisdiction and setting aside of the ruling of 5th June 2023
The court held the relationship mutated from licensor-licensee to landlord and tenant periodic tenancy, so the Act applies and the Tribunal is clothed with jurisdiction
Orders of eviction, vacant possession, declarations of trespass and permanent injunctions
The parties were referred back to the Tribunal for full hearing; the appellate court reserved any such determination for a later appeal stage
Costs of the appeal to the Appellant
Matter was referred back to the Tribunal, so the court declined to impose costs
Costs
Each party to bear own costs of the Appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
THAT based on the provisions of Sections 2 ( 1 ) and 12 of the Act, the BPRT has Jurisdiction to hear and determine this matter.
THAT the interim order granted by the BPRT on 23rd February, 2023 varying rent from a sum of Kenya Shillings Forty Thousand (Kshs. 40,000/-) to a sum of Kenya Shillings Ten Thousand (Kshs. 10,000/=) be and is hereby set aside and/or vacated.
THAT each party to bear own costs of the Appeal.
It would follow that the agreement between the Appellant and Respondent being not reduced in writing is a periodic tenancy and therefore, is a controlled tenancy under the provision of Section 2(1) (a) of the Act.
A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded or proved.
Issues in the judgment
#The judgment describes itself as an appeal decided under Section 79B and Order 42 but the court re-evaluated the merits of the tenancy question itself rather than strictly confining itself to the narrow ruling on the preliminary objection
The heading to the final section reads 'CNCLUSIONS' and the signature block repeats 'THIS' twice, indicating typographical errors
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Severin Sea Lodge (EA) Limited v Baracuda Kenya Limited (Environment and Land Appeal E042 of 2024) [2025] KEELC 3002 (KLR)", Case Analysis (2025). ELC Appeal (from BPRT Cause No. 12 of 2023), Memorandum of Appeal dated 19th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3002/eng@2025-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.