Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2025] KEELC 6443 (KLR)

Mariga v Ketere & another (Environment and Land Appeal E017 of 2024) [2025] KEELC 6443 (KLR)

Environment and Land Court
30 September 2025
2,571 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

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

#
This is a first appeal to the Environment and Land Court at Kilgoris against the judgment of Hon. W.C Waswa delivered on 27.06.2024 in a landlord-tenant dispute over a portion of Plot No. 24 Kilgoris Town, leased to the Appellant Ibrahim Thomas Mariga for 15 years from 1st January 2016. The Appellant, who had sued in trespass and lost while the 1st Respondent's counter-claim succeeded, raised 21 grounds contending inter alia that the trial magistrate was biased, that the landlord's re-entry was unlawful absent a 12 months' notice under Section 65(2) of the Land Act, and that costs were wrongly awarded. The court first established its own and the trial court's jurisdiction, holding that the lease, being terminable only on breach of covenant and for a 15-year term, was not a controlled tenancy under Cap 302. On competence, it held that the Amended Memorandum of Appeal filed on 05.11.2024 preceded the directions issued on 02.04.2025 and therefore required no leave under Order 42 Rule 3. On the merits, guided by Selle v Associated Motor Boat, the court reappraised the evidence: the Appellant had conceded in cross-examination subletting the premises to Josemo Distributors by agreement dated 20.09.2022 without the landlord's written consent, breaching clause 1(p) which permitted re-entry without notice. Trespass was therefore not proved, the counter-claim was proved, and the trial magistrate's findings and award of costs under Section 27 of the Civil Procedure Act were correct. The appeal was dismissed, the interim orders of 27.02.2025 and 02.04.2025 discharged, the trial judgment upheld, and costs of the appeal, suit and counter-claim awarded to the Respondents.

Key legal issues

#
01

Competence of the Amended Memorandum of Appeal filed without leave

Holding

The appeal was competent; the amendment preceded directions under Order 42 Rule 13 and required no leave under Order 42 Rule 3

Reasoning

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.

p. 4
02

Whether the trial magistrate had jurisdiction (controlled tenancy)

Holding

The 15-year lease terminable only on breach was not a controlled tenancy; the magistrate had jurisdiction

Reasoning

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.

p. 4
03

Whether the Appellant proved trespass

Holding

No; the landlord's entry was permitted by clause 1(p) upon the Appellant's breach by subletting

Reasoning

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.

p. 5
04

Whether the counter-claim was proved

Holding

Yes; the admitted subletting without consent was a breach entitling re-entry and termination

Reasoning

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.

p. 6
05

Costs of the suit and counter-claim

Holding

Costs follow the event under Section 27 of the Civil Procedure Act; no error in the trial court's award

Reasoning

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.

p. 6

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. 1.The Appeal is dismissed
  2. 2.The judgment delivered by Hon. W.C Waswa on 27.06.2024 is upheld
  3. 3.The interim orders issued on 27.02.2025 and confirmed on 02.04.2025 are discharged
  4. 4.Costs of the Appeal, the suit and the counter-claim are awarded to the Respondents

Authorities

#

Legislation

  • Land ActSection 65(2)
  • Civil Procedure ActSection 27
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 3
  • Civil Procedure RulesOrder 42 Rule 13
  • Evidence ActSection 107
  • Business Premises Rent Tribunal Act (CAP 302)Section 2(1)(b)(11)

Cases cited (3)

  • Zaburi Enterprises Co. Ltd Vs. Chepkemoi
    Civil Appeal No. 57/2020
  • Khalif Jele Mohammed and Another Vs. Republic and Another
    (2019) eKLR
  • Selle and Another vs. Associated Motor Boat and 3 Others
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.