Lotfa Resort Diani Ltd & another v Wanja (Civil Appeal E002 of 2025) [2026] KEELC 2967 (KLR)

The court accepted that Section 2 of Cap. 301 recognizes informal, unwritten tenancies where an identifiable landlord, tenant, premises and rent payment exist. However, the respondent's own affidavit admitted she was denied access on 13th December 2024, before filing her reference. Following Michael Gachie Mwarangu, once a tenant is evicted or denied possession, the landlord–tenant relationship ceases. The Tribunal's inference of tenancy from invoices and Mpesa payments therefore faltered where occupation and possession were absent.

Relying on Owners of Motor Vessel 'Lillian S' and Samuel Kamau Macharia, the court reiterated that jurisdiction flows from statute and a court downs tools once it finds it lacks jurisdiction. Under Cap. 301 and the Pritam v Ratilal line of authority, existence of a landlord–tenant relationship is a condition precedent to the Tribunal's jurisdiction. Since the respondent was already dispossessed when she filed, no controlled tenancy subsisted, so the entire reference was outside the Tribunal's area of jurisdiction.

Following Re Hebtulla Properties Limited, the court held that recovery of possession under Section 12(1)(e) is a landlord's remedy; no corresponding power exists for a tenant forcibly dispossessed by a landlord. Additionally, the respondent had admitted dispossession before filing, so the Tribunal could not lawfully restore possession through break-in orders. Such orders amounted to mandatory injunctions at an interlocutory stage, which require special circumstances under the Kenya Breweries v Washington Okeyo threshold.

Order 9 Rule 9 requires leave of court or a filed consent where an advocate comes on record after judgment. The Tribunal's ruling constituted a judgment, and the record showed no leave or consent for the incoming firm. However, invoking Article 159(2)(d) of the Constitution, the court treated the defect as curable and regularizable, choosing to determine the appeal on its merits rather than dismiss it on a technicality.