Gitonga v County Government of Nyeri & another (Environment and Land Petition E003 of 2025) [2026] KEELC 2996 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a tenant's bid to keep a county staff house, ruling that subletting agreements prohibited by regulations are illegal and unenforceable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application under Notice of Motion lacking a supporting affidavit is competent and whether the court should consider it on the merits
- 2.Whether the Applicant established a valid landlord-tenant relationship or enforceable agreement with the 2nd Respondent
- 3.Whether the agreement between the Applicant and the 2nd Respondent was rendered illegal and unenforceable by the prohibition on subletting under the Estate Administration Regulations
- 4.Whether the Applicant was entitled to have the vacation notice lifted, status quo orders, transfer of the suit premises and restraint against harassment
Key legal issues
#Competence of a notice of motion without a supporting affidavit
The infirmity was not fatal; the court proceeded to determine the application on its merits rather than strike it out
Order 51 rule 4 requires motions grounded on evidence to be accompanied by the supporting affidavit. The court noted the application lacked a supporting affidavit and that the suit was erroneously filed as a Petition in the CTS system. Citing Jungle Energy and Amondi v Airtel, the court held striking out is not necessarily fatal where defects are procedural, and declined to dispose of the matter on that basis.
Enforceability of the subletting agreement
The agreement between the Applicant and the 2nd Respondent was illegal and void because the Estate Administration Regulations prohibited subletting of staff houses
The Estate Administration Regulations reserved Kimathi Estate houses for staff and prohibited subletting. Applying Patel v Singh and Kenya Airways v Satwant Singh Flora, the court held the contract was void ab initio and the Applicant, implicated in the illegality, could not invoke the court's aid. No valid landlord-tenant relationship existed since the 2nd Respondent was never the owner.
Legal principles established
#- A notice of motion grounded on evidence must be supported by an affidavit; where grounded on affidavit, a copy of the affidavit intended to be used must be served
- A contract expressly or impliedly prohibited by statute or contrary to public policy is void ab initio and unenforceable
- A court will not assist a party implicated in illegality, whether or not the defendant pleaded the illegality
Court orders
#- 1.The instant application, dated February 19, 2025, is without merit and is hereby dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over landlord-tenant disputes concerning the suit premises (House KM6-E41, Kimathi Estate, Nyeri)
Relief refused
#Lifting of the vacation notice CGN/KIM/LG E41 (KM6-E41) dated January 31, 2025
The agreement relied upon was illegal and void as subletting was prohibited; no valid landlord-tenant relationship existed
Status quo orders
Application dismissed for lack of merit
Compulsion of the 1st and 2nd Respondents to transfer the suit premises to the Applicant
No enforceable contract; court cannot enforce obligations arising from an illegal transaction
Restraint against harassment of the Applicant's family
Application dismissed for lack of merit
Costs
Application dismissed with costs to the Respondents
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.
The instant application, dated February 19, 2025, is without merit and is hereby dismissed with costs.
Consequently, whatever agreement may have been made between the Applicant and the Respondent, which has not been produced, was expressly prohibited and therefore illegal and void.
No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court
The third effect of illegality is to avoid the contract ab initio and that arises if the making of the contract is expressly or impliedly prohibited by statute or is otherwise contrary to public policy.
Issues in the judgment
#The matter is inconsistently described as a Petition yet instituted by a Plaint; the court itself noted the misfiling
The Applicant is variously referred to as Petitioner and Plaintiff/Applicant in the judgment
Rent figure appears inconsistently as Kshs. 150,000/= described as monthly rent in the analysis although the application describes it as the agreement sum
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga v County Government of Nyeri & another (Environment and Land Petition E003 of 2025) [2026] KEELC 2996 (KLR)", Case Analysis (2026). Petition dated February 19, 2025 (Notice of Motion dated February 19, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2996/eng@2026-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.