Mariga v Ketere & another (Environment and Land Appeal E017 of 2024) [2025] KEELC 6443 (KLR)
The bottom line
#A Kenyan tenant who sublets leased premises without the landlord's written consent loses his trespass claim, his appeal, and pays all costs.
What this practically means
#Executive summary
#Key legal issues
#Competence of the Amended Memorandum of Appeal filed without leave
The appeal was competent; the amendment preceded directions under Order 42 Rule 13 and required no leave under Order 42 Rule 3
Judgment was delivered on 27.06.2024; the original memorandum was filed 9.07.2024 within the 30 days under Section 79G. The amendment was effected on 05.11.2024, before directions issued on 02.04.2025, hence Order 42 Rule 3 permitted amendment without leave.
Whether the trial magistrate had jurisdiction (controlled tenancy)
The 15-year lease terminable only on breach was not a controlled tenancy; the magistrate had jurisdiction
Relying on Khalif Jele Mohammed, the court examined Section 2(1)(b)(11) of Cap 302: a tenancy is controlled only if it provides for termination otherwise than for breach within 5 years. Clause 6 allowed termination only on breach, so jurisdiction was not ousted.
Whether the Appellant proved trespass
No; the landlord's entry was permitted by clause 1(p) upon the Appellant's breach by subletting
Clause 1(p) prohibited subleasing and permitted re-entry without notice upon breach. The Appellant conceded in cross-examination that he sublet to Josemo Distributors, so the entry was lawful and the trespass claim failed under the burden in Section 107 of the Evidence Act.
Whether the counter-claim was proved
Yes; the admitted subletting without consent was a breach entitling re-entry and termination
The 1st Respondent produced the sublease agreement and the Appellant conceded subletting in cross-examination; the learned magistrate correctly found breach of clause 1(p) at paragraph 71 of the impugned judgment.
Costs of the suit and counter-claim
Costs follow the event under Section 27 of the Civil Procedure Act; no error in the trial court's award
The court held that costs ordinarily follow the event and, the appeal having failed, the magistrate did not err in awarding costs to the defendants; costs of the appeal, suit and counter-claim were awarded to the Respondents.
Legal principles established
#- An amendment to a Memorandum of Appeal made before directions under Order 42 Rule 13 are issued requires no leave under Order 42 Rule 3
- A lease for a fixed term terminable only on breach of covenant is not a controlled tenancy under Cap 302 and does not oust the magistrate's jurisdiction
- Subletting demised premises without the landlord's written consent in breach of a no-subletting clause entitles the landlord to re-entry and termination
Court orders
#- 1.The Appeal is dismissed
- 2.The judgment delivered by Hon. W.C Waswa on 27.06.2024 is upheld
- 3.The interim orders issued on 27.02.2025 and confirmed on 02.04.2025 are discharged
- 4.Costs of the Appeal, the suit and the counter-claim are awarded to the Respondents
- On appeal from
- Magistrates' Court at Kilgoris
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction under the Civil Procedure Act (Section 79G, Order 42 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mariga v Ketere & another (Environment and Land Appeal E017 of 2024) [2025] KEELC 6443 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6443/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.