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ELCAllowedMemorandum of Appeal dated 18/3/2024 (BPRT appeal)· [2025] KEELC 6711 (KLR)

Jawanga Investments Limited v Shah t/a Lewins; Adcom General Traders Ltd (Interested Party) (Environment and Land Appeal E040 of 2025) [2025] KEELC 6711 (KLR)

Business Premises Rent Tribunal Appeal (delivered at Nairobi)
25 September 2025
4,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ruled a landlord's eviction was lawful, so the tenant's tenancy was extinguished and the Rent Tribunal had no power to order her restoration.

What this practically means

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Executive summary

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The appellant landlord, Jawanga Investments Limited, appealed against orders of the Business Premises Rent Tribunal made on 29/2/24 and 1/3/24, which dismissed the landlord's preliminary objection on jurisdiction and allowed the tenant's motion dated 14/11/23 by directing that the tenant was entitled to the demised premises on Latema Road, Nairobi, with free access and restoration of her goods. The appellant contended that the tenant had been lawfully evicted on 10/11/23 pursuant to Tribunal orders of 3/10/23 that remained unchallenged, extinguishing the controlled tenancy and ousting the Tribunal's jurisdiction, and that service had in any event been properly effected on Mayur K. Shah, who occupied under a power of attorney from SK Shah. The respondent maintained a controlled tenancy subsisted and that her eviction was unlawful; the interested party, the new tenant in possession and renovating, supported the appeal. The court, hearing a first appeal, re-evaluated the record. It found service on Mayur Shah proper, holding that a party alleging non-service must cross-examine the process server. It held that under Sections 4 and 4(6) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act the tenant filed no reference before the tenancy notice took effect, so the eviction was lawful and the controlled tenancy was immediately extinguished. The Tribunal therefore usurped a jurisdiction it did not possess. The appeal was allowed: the Tribunal's orders were set aside in their entirety, the landlord's preliminary objection dated 28/11/2023 was upheld, and costs were awarded to the appellant.

Key legal issues

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01

Whether the respondent was properly served with the notice of termination and the application decided on 3/10/23

Holding

Service on Mayur K. Shah, who occupied the premises under a power of attorney from SK Shah, was proper; the Tribunal erred in finding a lady ought to have been served, and non-service was not proved since the process server was not cross-examined.

Reasoning

The process server's affidavits showed Mayur Shah, known to the landlord since 2011 and occupying under a power of attorney, was identified and served. The Tribunal wrongly expected service on SK Shah herself. Further, a party alleging non-service bears the duty to cross-examine the process server, which Mayur failed to do. Service of the notice of termination, the motion dated 15/9/23 and accompanying documents was therefore proper.

p. 7
02

Whether the Tribunal retained jurisdiction after the tenant's eviction from the premises

Holding

The tenancy notice dated 21/6/23 took effect and the tenant filed no reference under Section 4(6) of the LTA; the eviction of 10/11/23 was lawful and extinguished the controlled tenancy, ousting the Tribunal's jurisdiction.

Reasoning

Section 4 of the LTA prescribes the form and service of a tenancy notice; Section 4(6) permits the receiving party to refer the matter to the Tribunal before the notice takes effect. The tenant had until 1/9/23 to file a reference but did not. The orders of 3/10/23 requiring vacation therefore stood, the eviction was lawful, and once the tenant was removed the controlled tenancy was extinguished, so the Tribunal ceased to have jurisdiction.

p. 8
03

Whether the Tribunal erred in dismissing the landlord's preliminary objection dated 28/11/23

Holding

The Tribunal usurped a jurisdiction it did not possess; the preliminary objection should have been upheld and the Tribunal ought to have downed its tools.

Reasoning

Relying on the Owners of Motor Vehicle v Lilian S line of authority, once the controlled tenancy was extinguished the Tribunal had no jurisdiction to entertain the tenant's motion of 14/11/23 or to order restoration of the tenant to the premises. A court without jurisdiction has no power to make one more step. The dismissal of the preliminary objection was therefore erroneous and it is upheld on appeal.

p. 9
04

Whether the absence of an independent inspection report affected the Tribunal's decision

Holding

Although an inspection was ordered it was never carried out; the appellant instead filed an affidavit on the status of the premises, and nothing turns on the absence of the report.

Reasoning

The court ordered an independent inspection of the premises on 30/11/23, but it was not conducted. In its place the appellant filed an affidavit, as directed, confirming the tenant had vacated and renovations were ongoing by the new tenant. The appellate court found that the missing report did not affect the outcome of the appeal.

p. 9

Legal principles established

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  • Where a tenant has been lawfully removed from the premises pursuant to valid court orders, the controlled tenancy is extinguished and the Tribunal loses jurisdiction.
  • A party alleging non-service must cross-examine the process server; the burden is not on the court or the opposing party to prove service.
  • Jurisdiction cannot be conferred by consent or acquiescence and may be raised at any stage, even on appeal.

Court orders

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  1. 1.The Hon Business Premises Tribunal Order made on 29/2/24 and or 1/3/24 be and are hereby set aside in its entirety
  2. 2.The Preliminary Objection dated 28/11/2023 by the Landlord is hereby upheld
  3. 3.The costs shall be in favour of the Appellant

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 2 (definition of controlled tenancy)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 4 and Section 4(6)
  • Civil Procedure ActSection 78

Cases cited (6)

  • Owners of Motor Vehicle vs Lilian S
    (1989) 1 KLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) EKLR
  • Kapsiran Clan -vs- Kasagur Clan
    [2018] eKLR
  • Mary Wambui Munene v Peter Gichuki Kingara and Six Others
    Petition No. 7 of 2013, [2014] eKLR
  • 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
not stated (prior litigation included BPRT No 680 of 2011 and BPRT No E032 of 2021)
Jurisdiction invoked
First appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act; appellate powers under Section 78 of the Civil Procedure Act

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, "Jawanga Investments Limited v Shah t/a Lewins; Adcom General Traders Ltd (Interested Party) (Environment and Land Appeal E040 of 2025) [2025] KEELC 6711 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 18/3/2024 (BPRT appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6711/eng@2025-09-25

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