Kyengo & another v Watamu Development Ltd (Appeal E009 of 2024) [2025] KEELC 4180 (KLR)
The bottom line
#A Kenyan court ruled that tribunals cannot issue final eviction or rent judgments without hearing both sides, sending this landlord-tenant dispute back for a full hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the tribunal had jurisdiction to deal with the matter
- 2.Whether the trial court (tribunal) erred by determining the application dated 13/12/2022
Key legal issues
#Whether the Business Premises Rent Tribunal had jurisdiction over the dispute
The Tribunal's jurisdiction is confined to controlled tenancies under section 2 of Cap 301, but whether a tenancy subsisted after expiry of the 6-year lease was a contested factual issue, so the preliminary objection was properly rejected as not a pure point of law; jurisdiction was not found to be wanting at that stage.
The court traced the definition of a controlled tenancy under section 2 of Cap 301 and the Tribunal's power under section 12(4). Applying Oraro v Mbaja, the court held that since the existence of a post-expiry tenancy required probing of facts (leaving equipment on the premises, non-yielding of possession), the objection could not succeed as a pure point of law and the matter had to proceed on the merits.
Whether the tribunal erred in giving a final judgment without hearing the parties
The appeal succeeded on this ground; the tribunal, having canvassed only the preliminary objection by submissions, wrongly made final orders allowing the application, effectively determining the whole suit.
Both parties' submissions before the tribunal were addressed only to the preliminary objection. The tribunal nonetheless allowed the application dated 13/12/2022 in terms amounting to final determination of the suit (rent arrears, eviction, possession), while the main suit remained pending. The court held only interlocutory relief could properly have been considered at that stage.
Whether the Chairperson erred by acting suo motu in treating the plaint as a complaint under section 12(4) of Cap 301
The court declined to found the appeal on that ground, taking the view that the tribunal could look at access to justice and substantive justice notwithstanding the mode of commencement.
The court acknowledged the suit was commenced by plaint rather than a reference but held that courts exist to serve substantive justice and both parties deserve a proper opportunity to advance their cases; the natural justice failure, not the mode of commencement, grounded the appeal.
Legal principles established
#- A preliminary objection that requires additional evidence or investigation of disputed facts is not a true preliminary objection and the matter should proceed to hearing on the merits.
- A tribunal or court may not enter final judgment on disputed matters without giving both parties a proper opportunity to be heard on the merits.
- A preliminary objection on whether a landlord-tenant relationship subsists after expiry of a written lease is a contested factual question falling outside the Tribunal's pure-point-of-law route.
Court orders
#- 1.The appeal succeeds to the extent that the tribunal erred in law by giving a final judgement without hearing the parties
- 2.The matter is remitted to the tribunal for hearing on merits
- 3.Each party to bear its 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, Mombasa
- BPRT No. E270 of 2022
- Jurisdiction invoked
- Appeal from a subordinate tribunal; the judgment cites Article 169(1) of the Constitution of Kenya 2010 classifying the Business Premises Rent Tribunal as a subordinate court
Relief refused
#Appellant's principal prayer that the ruling be set aside and substituted with a declaration that the Chairperson had no jurisdiction to entertain the proceedings
The court agreed with the tribunal that the preliminary objection was not a pure point of law because the existence of a tenancy after expiry of the lease was a contested factual issue
Costs
Let each party bear its 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.
The upshot of the foregoing is that the appeal succeeds to the extent that the tribunal erred in law by giving a final judgement without hearing the parties. The matter shall therefore be remitted to the tribunal for hearing on merits.
Let each party bear its own costs of the Appeal.
In my view the preliminary objection could not sail through as a pure point of law. I say so because the existence of the tenancy after the expiry was a contested issue.
Both parties deserve justice and their legitimate expectation is that they will each be allowed a proper opportunity to advance their respective cases upon the merits of the matter.
Issues in the judgment
#The judgment inconsistently dates the Notice of Motion/application as 13/12/2022 in early paragraphs but refers to 'the application dated 13/12/2024' in later paragraphs including in the court's own holding.
The role descriptions are inconsistent: paragraph 1 describes the Appellant as tenant and the Landlord as respondent tenants/Respondents, and the Appellant's Memorandum of Appeal is attributed to 'The respondent tenant being aggrieved'.
The case number and title of the present appeal before the High Court/ELC are not stated in the judgment as supplied.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kyengo & another v Watamu Development Ltd (Appeal E009 of 2024) [2025] KEELC 4180 (KLR)", Case Analysis (2025). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4180/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.