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ELCDismissedMemorandum of Appeal dated 25th November 2022· [2026] KEELC 599 (KLR)

Mascarenhas & 2 others v Waithaka t/a Zegoko Enterprises (Environment and Land Appeal E162 of 2024) [2026] KEELC 599 (KLR)

Environment and Land Court
30 January 2026
TMT. Murigi
2,830 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court determines a Notice of Preliminary Objection dated 14th February 2025 raised by the Respondent, contending that the court lacks jurisdiction to hear the Appellant's Memorandum of Appeal dated 25th November 2022 from a ruling of the Business Premises and Rent Tribunal in Case No. E649 of 2022 delivered on 28th October 2022. The Respondent argued that the Appellant neither sought nor obtained leave to appeal, that the impugned ruling arose from a complaint under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act rather than a reference, and that Section 15 of the Act confers an appeal as of right only in respect of determinations arising from references. The Appellant countered that an automatic right of appeal exists from any Tribunal decision, and that the impugned ruling arose from an application under Sections 12(1)(h) and 12(4) of the Act seeking injunctive relief against distress for rent, falling within Order 43 Rule 1(1) of the Civil Procedure Rules. The court, applying the settled law on preliminary objections and jurisdiction, and distinguishing the authority of Ruth K. Wachira, found that the impugned ruling arose from interlocutory proceedings within an existing reference, that the parties were parties to a reference within the meaning of Section 15, and that the Appellants therefore possessed an automatic right of appeal without leave. The preliminary objection was dismissed with costs to the Appellants.

Key legal issues

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01

Whether leave to appeal was required before filing the appeal from the Tribunal

Holding

No leave was required because the impugned ruling arose from interlocutory proceedings within an existing reference, making the Appellants parties to a reference with an automatic right of appeal under Section 15

Reasoning

The court distinguished authorities confining appeals to references as opposed to complaints under Section 12(4). The impugned ruling arose from an application seeking injunctive relief ancillary to a pending reference in Tribunal Case No. E649 of 2022; the Tribunal treated the application as part of the reference and gave directions for its hearing. The parties were therefore parties to a reference within Section 15 and enjoyed an automatic right of appeal.

p. 6
02

Whether the court has jurisdiction to hear and determine the appeal

Holding

The court has jurisdiction; the preliminary objection was dismissed

Reasoning

Jurisdiction flows from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, which confer appellate jurisdiction over tribunals exercising jurisdiction over disputes contemplated under Article 162(2)(b), where such appellate jurisdiction is conferred by statute. Section 15 of the Landlord and Tenant Act conferred that statutory right here, so the objection that leave was a prerequisite failed.

p. 4

Legal principles established

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  • A party lodging an appeal must demonstrate the legal basis for the appeal, including whether the right of appeal exists as of right or whether leave was required and obtained
  • Section 15 of the Landlord and Tenant Act limits the right of appeal to parties to a reference, not parties pursuing a complaint under Section 12(4)

Court orders

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  1. 1.The Preliminary Objection dated 14th February 2025 is dismissed with costs to the Appellants

Authorities

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Legislation

  • Civil Procedure RulesOrder 43 rule 1(1)
  • Civil Procedure RulesOrder 43 Rule 3
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 75
  • Civil Procedure ActSections 3 and 3A
  • Constitution of Kenya, 2010Articles 50(1), 159 and 162(2)(b)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSections 2, 4(5), 6, 12(1)(h), 12(4) and 15
  • Environment and Land Court ActSection 13

Cases cited (15)

  • Mike Muli v Justus Mwandikwa Kilonzo & 4 others
    (2022) eKLR
  • Republic v Principal Secretary, Ministry of Interior and Co-ordination of National Government & Attorney General Ex-Parte Simon Wainaina Mwaura
    [2018] KEHC 9114 (KLR)
  • Simon Kalachu v Yuasa International Limited & another
    [2021] eKLR
  • Serephen Nyasani Menge v Rispah Onsase
    [2018] KEELC 654 (KLR)
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others
    (Civil Appeal 656 of 2022) (2023) KECA 80 (KLR)
  • Ruth K. Wachira t/a Amigirl Beauty Palour v Chairman Business Rent Tribunal
    [2006] KEHC 3092 (KLR)
  • Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd
    [1969] EA 696
  • Oraro v Mbaja
    (2005) eKLR
  • Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Nyutu Agrovet Limited v Airtel Networks Limited
    [2015] KECA 1012 (KLR)
  • Re-Heptulla Properties Ltd
    (1979) eKLR
  • Gatanga General Store & 2 Others v Githere
    (1988) eKLR
  • Choitram v Mystery Model Hair Saloon
    [1972] EA 525
  • Machenje v Kibarabara
    [1973] EA 481
On appeal from
Business Premises and Rent Tribunal
Business Premises and Rent Tribunal Case No. E649 of 2022
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) 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, "Mascarenhas & 2 others v Waithaka t/a Zegoko Enterprises (Environment and Land Appeal E162 of 2024) [2026] KEELC 599 (KLR)", Case Analysis (2026). Memorandum of Appeal dated 25th November 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/599/eng@2026-01-30

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