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ELCAllowed· [2025] KEELC 4862 (KLR)

Nzioka v Shecodily Enterprises (Environment and Land Appeal E079 of 2024) [2025] KEELC 4862 (KLR)

Environment and Land Court (sitting on appeal from the Business Premises Rent Tribunal)
30 June 2025
1,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant, a tenant who had rented the Respondent's premises for residential purposes and later claimed to have used them for business, appealed to this Court against a Ruling of the Business Premises Rent Tribunal (BPRT) in BPRT No. E255 of 2023 delivered on 19 March 2024 by Hon Gakuhi Chege. The Tribunal had upheld the Respondent's preliminary objection that the premises were residential and that the Tribunal therefore lacked jurisdiction under the Land Lord and Tenant (Shops Hotel and Catering Establishment) Act Cap 301, which applies only to controlled business premises. The appeal was canvassed by written submissions. The Appellant argued, relying on Mukisa Biscuit, that the objection was founded on disputed facts - whether the premises were commercial or residential - and that the Tribunal had failed to interrogate the inspector's report (by Susan Akinyi/Oywa) which suggested the premises looked more like a business premises. The Respondent maintained the Tribunal rightly found it had no jurisdiction over residential premises. The court framed the key issue as whether the preliminary objection was a pure point of law. It accepted that a jurisdictional objection is generally a pure point of law, but held that because the objection required consideration of the inspection report and other evidence to resolve whether the premises were business or residential, it was not a pure point of law and was therefore improperly upheld. The appeal succeeded; the Tribunal's Ruling and orders were set aside, the Appellant's applications dated 7 March 2023 and 23 February 2023 were allowed, and costs of the appeal were awarded to the Appellant against the Respondent.

Key legal issues

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01

Whether the preliminary objection that the premises were residential (hence outside the Tribunal's jurisdiction) was a pure point of law

Holding

Because the objection required an examination of the Tribunal-commissioned inspection report and other evidence to determine whether the premises were commercial or residential, it was not a pure point of law.

Reasoning

The court reaffirmed the Mukisa Biscuit definition that a preliminary objection must rest on assumed, uncontested facts. Here the Tribunal's inspector's report left it uncertain whether the premises were residential or commercial. Since the objection required an inquiry into facts rather than a pure question of law, it could not stand, and the Tribunal erred in upholding it.

p. 4
02

Whether jurisdictional objections are pure points of law

Holding

Yes - to the extent the objection was premised on jurisdiction, it was a pure point of law, but the factual dispute over the nature of the premises nonetheless removed it from that ambit.

Reasoning

Relying on Mary Wambui Munene and Owners of the Motor Vessel Lillian S, the court acknowledged that jurisdiction goes to the root of a matter and is a pure question of law. However, the jurisdictional question here turned on whether the premises were controlled business premises, a factual matter requiring the inspection report, so the objection failed the Mukisa test.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law; it cannot be raised where facts require ascertainment or judicial discretion is sought.
  • Jurisdiction is a pure question of law to be resolved on a priority basis.
  • Jurisdiction cannot be conferred by consent or acquiescence of the parties.

Court orders

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  1. 1.The Ruling and order of Hon Gakuhi Chege issued on the 19/3/24 be set aside
  2. 2.The application dated the 7/3/23 and 23/2/23 be allowed
  3. 3.The costs of the appeal be borne by the Respondent

Authorities

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Legislation

  • Land Lord and Tenant (Shops Hotel and Catering Establishment) Act Cap 301Section 12

Cases cited (6)

  • Mukisa Biscuit Manufacturing Limited –vs- West End Distributors
    (1969) EA 696
  • Hassan Ali Joho & Another -Vs- Suleiman Said Shabal & 2 others
    Petition No. 12013[2014] eKLR
  • Mary Wambui Munene Vs. Peter Gichuki Kingara and Six Others
    Petition No. 7 of 2013 [2014] eKLR
  • Owners of the Motor Vessel Lillian S –vs- Caltex Oil Kenya Limited
    (1989) KLR 1
  • Jamal Salim –v- Yusuf Abdulahi Abdi & another
    Civil Appeal No. 103 of 2016 [2018] eKLR
  • Adero & Another –v- Ulinzi Sacco Society Limited
    [2002] 1 KLR 577
On appeal from
Business Premises Rent Tribunal (BPRT)
BPRT No. E255 of 2023
Jurisdiction invoked
Appeal from the Business Premises Rent Tribunal under the Land Lord and Tenant (Shops Hotel and Catering Establishment) Act Cap 301

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, "Nzioka v Shecodily Enterprises (Environment and Land Appeal E079 of 2024) [2025] KEELC 4862 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4862/eng@2025-06-30

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