Mvungu & another v Mvungu (Environment and Land Miscellaneous Case E042 of 2025) [2025] KEELC 6507 (KLR)
The bottom line
#A Kenyan court threw out a landlord's eviction suit because disputes over short-term business leases belong to the Rent Tribunal, not the Environment and Land Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the one-year written lease constituted a controlled tenancy under Cap 301
Yes. The lease was written, related to business premises (a 'shop'), and was for one year, within the five-year statutory threshold; no exemption under Section 3 was shown.
The court applied the definition of 'controlled tenancy' in Section 2 of Cap 301, which covers written tenancies of shops, hotels or catering establishments for periods not exceeding five years. The undisputed lease was in writing, for business premises, and for a fixed one-year term. No evidence of exemption under Section 3 was adduced, so the tenancy fell squarely within the Act.
Whether expiry of the lease transformed the dispute into trespass within the ELC's jurisdiction
No. The dispute is rooted in arrears and possession accrued during the subsistence of the controlled tenancy; the BPRT retains exclusive jurisdiction under Section 12(1).
Although the plaintiffs characterised the defendant's continued occupation as trespass, the court held that the dispute arose from rent arrears and recovery of possession during the tenancy. Section 12(1) of Cap 301 vests exclusive original jurisdiction in the BPRT, and expiry by effluxion of time does not divest the Tribunal of jurisdiction over such disputes.
Whether the plaintiffs' suit should be struck out or stayed and referred to the BPRT
Struck out in its entirety. A court lacking jurisdiction cannot regulate or preserve proceedings by way of stay; the doctrine of exhaustion of statutory remedies applies.
Following the jurisdictional principles in Owners of the Motor Vessel 'Lillian S' and Samuel Kamau Macharia, the court held it had no discretion where jurisdiction lies with a specialized tribunal. The suit, instituted without exhausting remedies under Cap 301, was incompetent from inception and had to be struck out rather than stayed, leaving parties free to litigate before the BPRT.
Legal principles established
#- A written lease of business premises for a term not exceeding five years is a controlled tenancy under Section 2 of Cap 301, and disputes arising therefrom fall within the exclusive original jurisdiction of the BPRT.
- Expiry of a controlled tenancy by effluxion of time does not divest the BPRT of jurisdiction over disputes that accrued during the tenancy.
- Where a suit is filed in a forum devoid of jurisdiction it is incompetent from inception, and a court without jurisdiction cannot preserve proceedings by a stay.
Court orders
#- 1.Declaration that the lease agreement dated 29th February 2024 created a controlled tenancy within the meaning of Section 2 of Cap 301.
- 2.Finding that the expiry of the lease by effluxion of time on 28th February 2025 did not divest the BPRT of jurisdiction over disputes relating to arrears, eviction and possession which arose during the tenancy.
- 3.Striking out the Plaintiffs' suit for want of jurisdiction, leaving the parties at liberty to ventilate their grievances before the Tribunal established under Cap 301.
- 4.Each party to bear its own costs.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (jurisdiction of the ELC considered); application under Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, Cap 21 and Sections 2, 4, 6 and 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mvungu & another v Mvungu (Environment and Land Miscellaneous Case E042 of 2025) [2025] KEELC 6507 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6507/eng@2025-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.