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ELCPartially AllowedBPRTC No. E800 OF 2023 (Appeal)· [2025] KEELC 6667 (KLR)

Kungu & 6 others v Gituthu (Environment and Land Appeal E228 of 2024) [2025] KEELC 6667 (KLR)

Environment and Land Court
29 September 2025
JKJ. G. Kemei
3,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a landlord's valid termination notice but doubled the tenants' time to move out from 45 to 90 days.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the Business Premises Rent Tribunal (Chairman Hon. Gakuhi Chege and Member Joyce Akinyi Osodo) of 13 December 2024, which dismissed tenants' references opposing the landlord's termination notices dated 22 June 2023 over premises on LR No. 209/1837, Bidii House, Duruma Road, Nairobi. The tenants appealed on grounds including invalidity of the notice, the landlord's lack of financial capacity, absence of approved plans and bills of quantities, and the inadequacy of 45 days to vacate. The landlord defended the notices, relying on public health notices and an uncontroverted Structural Engineer's report showing deep cracks, dampness, a leaking roof, inadequate toilets and plumbing requiring the premises to be vacant during works. J. G. Kemei J, as the first appellate court, re-evaluated the evidence per Selle v Associated Motor Boat Co. He held the notice complied with Sections 4(2), 4(4), 4(5) of Cap. 301 and Regulation 4(1), and that the landlord demonstrated a genuine intention to carry out substantial reconstruction under Section 7(1)(f), incapable of performance with tenants in occupation. The court found the Tribunal's judgment not against the weight of evidence but agreed that 45 days was insufficient. The appeal was partially allowed: the Tribunal's judgment was modified to give the appellants 90 days to vacate, failing which eviction would follow, with each party bearing their own costs of the appeal and the Tribunal.

Key legal issues

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01

Validity of the termination notice

Holding

The notice dated 22/06/2023 complied with Sections 4(2), 4(4), 4(5) of Cap. 301 and Regulation 4(1) and was valid

Reasoning

The court examined the notice against the statutory requirements: prescribed form, two months' minimum notice period, specification of grounds, and the requirement to invite the receiving party's response. Finding all elements present, the court upheld the Tribunal's conclusion that the notice was valid under the Act.

p. 5
02

Whether termination ground under Section 7(1)(f) was established

Holding

The Landlord proved a genuine intention to carry out substantial reconstruction that could not reasonably be done without vacant possession

Reasoning

Relying on the uncontroverted Structural Engineer's evidence of deep floor cracks, dampness, leaking roof, inadequate sanitary facilities and the need to redo plumbing, the court found the renovations substantial. The health notices issued under the Public Health Act reinforced this. No counter-expert evidence was adduced by the Tenants.

p. 6
03

Adequacy of the 45-day vacation period

Holding

45 days was insufficient; the period was extended to 90 days balancing the interests of the business tenants and the investor landlord

Reasoning

The court weighed the Appellants' need to relocate their businesses against the Respondent's property rights under Articles 40 and 46 and the public health context under Article 43(1). It concluded that 90 days was a sufficient period to source alternative premises, modifying the Tribunal's order accordingly.

p. 6

Legal principles established

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  • A tenancy notice complies with the Act if it meets the requirements of Section 4(2), 4(4) and 4(5) of Cap. 301 and is in the prescribed Form A
  • A first appellate court must re-evaluate the evidence and reach its own conclusions
  • A party challenging an expert's opinion must counter it with its own expert evidence

Court orders

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  1. 1.The appeal is partially allowed
  2. 2.The Judgment of the Tribunal delivered on 13/12/2024 is modified to allow the Appellants 90 days from the date of the judgment within which to vacate the premises
  3. 3.Failure to vacate shall entitle the Respondent to evict them
  4. 4.Each party shall bear their own costs of the appeal and those of the Tribunal

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSections 4(2), 4(4), 4(5), 6(1), 7(1)(f), 9
  • Landlord and Tenant (Shops forms and procedure) RegulationsRegulation 4(1)
  • Constitution of Kenya, 2010Articles 40(3), 43(1), 46, 66
  • Public Health ActCap. 242

Cases cited (3)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1968) EA 123
  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Embu Gaturi Housing Co-op Society –vs- George Thuo Tia Paramount Café & 2 Others
    [2021] KEELC 435 (KLR)
On appeal from
Business Premises Rent Tribunal
BPRTC No. E800 OF 2023
Jurisdiction invoked
First appellate jurisdiction over the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) 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, "Kungu & 6 others v Gituthu (Environment and Land Appeal E228 of 2024) [2025] KEELC 6667 (KLR)", Case Analysis (2025). BPRTC No. E800 OF 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6667/eng@2025-09-29

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