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ELCPartially AllowedBPRT E756 of 2024 (Appeal)· [2025] KEELC 7972 (KLR)

Mbevi t/a Kiandu Tyres v Kiriye House Limited (Environment and Land Appeal E186 of 2024) [2025] KEELC 7972 (KLR)

Business Premises Rent Tribunal (High Court appellate jurisdiction over tribunals)
11 November 2025
3,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan tribunal wrongly terminated a tenancy without a full hearing; the appeal court partially reversed the decision and ordered both sides' cases heard on their merits.

What this practically means

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Executive summary

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This was a first appeal against a ruling of the Business Premises Rent Tribunal (Hon Gad Chemoiyai, Member) delivered on 31/10/24 in BPRT E756 of 2024, dismissing the Tenant's preliminary objection and allowing the Landlord's application for vacant possession, termination of tenancy and eviction, while declining distress for rent. The Tribunal had also consolidated BPRT E881 of 2024 (the Tenant's reference against the termination notice) with E756 of 2024 and struck it out post-ruling. The Tenant appealed, contending summary termination without evidence, breach of the right to a fair hearing under Article 50(1), and other errors. The Landlord maintained the tenant was fully heard, the notice under Section 4 of Cap 301 was valid, and BPRT 298 of 2020 had meanwhile been dismissed for want of prosecution. The Court, applying Selle vs Associated Motor Boat Co and the Mukisa Biscuit and Oraro thresholds on preliminary objections, held the objection was correctly dismissed because sub judice and prematurity required probing of facts. However, it found the tribunal erred in granting final orders on an interlocutory motion without hearing the parties' competing references on their merits, offending the valued right to be heard; the post-ruling consolidation and striking out of the tenant's reference was perplexing. The appeal was allowed partially: the tribunal's ruling was set aside partially and both references were ordered to be heard on their merits, with each party bearing its own costs.

Key legal issues

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01

Whether the sub judice/prematurity objection was a pure point of law

Holding

The objection was not a pure point of law because determining sub judice required analysis of pleadings and contested facts; the tribunal correctly dismissed it

Reasoning

The court applied Mukisa Biscuit and Oraro thresholds. Determining whether the notice of 7/6/24 was sub judice relative to BPRT 298 of 2020 required probing of evidence and comparison of issues between suits, which takes the matter outside a preliminary objection properly so called. The tribunal's dismissal of the objection was therefore correct.

p. 7
02

Whether the tribunal summarily terminated the tenancy without a fair hearing

Holding

Yes; the tribunal erred in granting final orders on a notice of motion without hearing the parties' references on their merits

Reasoning

After dismissing the preliminary objection, the tribunal was bound to hear both the landlord's complaint/reference of 10/7/24 and the tenant's reference in BPRT E881 of 2024 on their merits, including the reason for termination. Instead it granted final orders of termination and possession on an interlocutory application, and the tenant's reference was consolidated post-ruling and struck out without being heard. That offended the right to be heard.

p. 8

Legal principles established

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  • A preliminary objection raising sub judice or prematurity issues requiring probing of facts is not a pure point of law and cannot succeed
  • The right to be heard is a valued right; final orders should not issue on an interlocutory application without hearing the parties' references on their merits

Court orders

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  1. 1.The Preliminary objection was not a pure point of law; it is dismissed
  2. 2.The Ruling of the tribunal issued on 31/10/24 be and is hereby set aside partially
  3. 3.The parties' references in BPRT E756 of 2024 and BPRT E881 of 2024 be heard on their merits
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 4(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 12(4)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 6
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 9
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 15
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 2
  • Civil Procedure ActSection 6
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (6)

  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Hassan Ali Joho & Another -Vs- Suleiman Said Shabal & 2 others
    SCK Petition No. 12013 [2014] eKLR
  • Mukisa Biscuit Manufacturers Ltd vs West End Distributors Ltd
    (1969) E.A
  • George Oraro –vs- Eston Mbaja
    [2005] eKLR
  • Henry Wanyama Khaemba –vs- Standard Chartered Bank Ltd & Another
    (2014) eKLR
  • Margaret Wachu Karuri –vs- John Waweru Ribiro
    (2021) eKLR
On appeal from
Business Premises Rent Tribunal
BPRT No E756 of 2024
Jurisdiction invoked
First appeal from 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, "Mbevi t/a Kiandu Tyres v Kiriye House Limited (Environment and Land Appeal E186 of 2024) [2025] KEELC 7972 (KLR)", Case Analysis (2025). BPRT E756 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7972/eng@2025-11-11

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