Kirui v Kirui (Environment and Land Appeal E006 of 2022) [2025] KEELC 7295 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a landlord cannot evict a protected shop tenant with a defective notice, even if the tribunal approved it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the tribunal erred in failing to find that the tenancy was a controlled tenancy protected under Cap 301
- 2.Whether the tribunal erred in failing to invalidate the defective notice to vacate issued by the Respondent
- 3.Whether the tribunal erred in failing to grant injunctive orders despite demonstrated irreparable harm and the landlord's failure to follow due process
- 4.Whether the tribunal erred in failing to appreciate that the Respondent was estopped from evicting the Appellant in violation of statutory protections (raised in submissions, disregarded by the Court)
- 5.Framed single issue: Whether the Tribunal failed to consider the relevant law and the Appellant's submissions in its ruling delivered on 8th September, 2022
Key legal issues
#Validity of the notice to terminate a controlled tenancy
The notice dated 17th November, 2021 was invalid as it failed to comply with Section 4 of Cap 301, requiring not less than two months' notice in the prescribed form
The parties did not dispute that the tenancy was controlled or that the notice dated 17th November 2021 was to take effect on 1st January 2022, a period of about six weeks. Section 4(4) requires not less than two months before a tenancy notice takes effect, and the tribunal itself found the notice wanting in form yet allowed it under Article 159. The Court held the tribunal erred in disregarding the mandatory provisions of Section 4.
Scope of first appellate review of grounds vs submissions
An appellant cannot travel beyond the memorandum of appeal; new grounds raised only in submissions are disregarded
Relying on Coastal Bottlers Limited v George Karanja, Amoth v Duncan and Kenya Hotels Ltd v Oriental Commercial Bank, the Court held that pleadings and grounds of appeal bind both parties and the Court. The Appellant's four grounds in submissions differed from the five in the memorandum of appeal dated 6th October 2022, and the extra grounds were therefore excluded from consideration.
Role of a first appellate court
A first appellate court re-evaluates the evidence and draws its own conclusions while making due allowance for not having seen or heard witnesses
Citing Gitobu Imanyara & 2 others v Attorney General and Abok James Odera v John Patrick Machira, the Court adopted the settled principle that a first appeal is by way of retrial, requiring re-evaluation and re-analysis of the record before deciding whether the tribunal's conclusions should stand.
Legal principles established
#- An appellant is bound by the grounds of appeal in the memorandum of appeal; new issues raised in submissions should be disregarded
- A controlled tenancy can only be terminated in accordance with the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, whose notice provisions are mandatory
- Article 159 of the Constitution cannot be invoked to validate a notice that fails mandatory statutory requirements
Court orders
#- 1.The appeal succeeds
- 2.The ruling delivered on 8th September, 2022 by the Business Premises Rent Tribunal in Case No. E037 of 2021 is set aside
- 3.The Appellant shall have costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal
- Business Premises Rent Tribunal Case No. E037 of 2021
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, the appeal succeeds. Consequently, the ruling delivered on 8th September, 2022 by the Business Premises Rent Tribunal in Case No. E037 of 2021 is hereby set aside.
It is therefore this Court’s view that the Vice Chair of the tribunal erred in allowing the Landlord’s notice to take efiect in complete disregard of the mandatory provision of the law i.e. Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.
an Appellant is bound by the Grounds of Appeal in his/her Memorandum of Appeal and any new issues raised in submissions are best disregarded.
The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of tenants for the purpose of afiording them the protection specified by its provisions against ravages of predatory landlords.
Issues in the judgment
#The judgment is dated 23rd October 2025 but the memorandum of appeal is described as dated 6th October 2022 while the application before the Tribunal is described as dated 22nd November 2022 (paragraph 2) and elsewhere 22nd November 2021 (paragraphs 4 and 58)
Ground (d) of the memorandum of appeal is garbled/incomplete
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirui v Kirui (Environment and Land Appeal E006 of 2022) [2025] KEELC 7295 (KLR)", Case Analysis (2025). ELC Case No. E006 of 2022 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7295/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.