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ELCDismissedBPRT E032 OF 2024 (Appeal therefrom, Memorandum of Appeal dated 15/4/2025)

Beige Investments Ltd v Kagwi (Environment and Land Appeal E074 of 2025) [2026] KEELC 3832 (KLR)

Environment and Land Court / High Court (first appellate court over the Business Premises Rent Tribunal)
18 June 2026
7,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan landlord lost an appeal to evict a tenant because he offered no solid proof of his claimed intention to occupy the premises himself.

What this practically means

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Executive summary

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This is a first appeal from the Ruling of the Business Premises Rent Tribunal (Hon. P. Kitur) delivered on 14/3/2025 in BPRT E032 OF 2024. The Tribunal had allowed the tenant's reference, declared the landlord's notice to terminate dated 22/12/2023 of no effect, directed that the tenant continue in occupation with quiet possession paying rent, and ordered each party to bear its own costs. The landlord appealed on numerous grounds, chiefly that the Tribunal wrongly applied the standard of proof applicable to Section 7(1)(f) of Cap. 301 (reconstruction) to a Section 7(1)(g) notice (landlord's intention to occupy), that it relied inappropriately on Auto Engineering v Gonella, imposed an elevated standard of proof, ignored evidence of the tenant's breaches including subletting, and infringed its Article 40 property rights. Kemei J framed four issues. The Court held that the notice complied with Sections 4(2), 4(4) and 4(5) of Cap. 301 and Regulation 4(1), and that a landlord's Article 40 right is not absolute but subject to statutory limitation under Cap. 301. It held that both Sections 7(1)(f) and 7(1)(g) require the landlord to prove a bona fide, firm and settled intention, not completed implementation, and that Auto Engineering remains good law and was correctly applied. On the weight of evidence, the landlord failed to adduce documentary proof of its intended use, and the Tribunal could not consider grounds not stated in the notice. The landlord remains free to issue a fresh notice subject to Section 9(3). The appeal was dismissed with costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Landlord's right to property is absolute
  2. 2.Whether the Tribunal erred in applying the standard of proof of intention as set out in Auto Engineering v Gonella (1978) KLR 248, to the instant case
  3. 3.Whether the decision of the tribunal was against the weight of evidence
  4. 4.Whether the appeal has merit or not

Key legal issues

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01

Whether the landlord's constitutional right to property under Article 40 is absolute

Holding

Article 40 rights are not absolute; Cap. 301 validly limits them in respect of controlled tenancies

Reasoning

Article 40(2)(a) permits Parliament to legislate for permissible deprivation of property and Article 24 permits reasonable and justifiable limitations. The right to property is not among the non-derogable rights in Article 25. Cap. 301 protects tenants of controlled tenancies from eviction or exploitation, and the Tribunal under Section 12(4) may investigate complaints and make such orders as it deems fit. Therefore a landlord's proprietary rights may be curtailed under the Act.

p. 9
02

Whether the Tribunal erred in applying the Auto Engineering standard of proof to a Section 7(1)(g) notice

Holding

No error: both Section 7(1)(f) and (g) require the landlord to prove a firm and settled intention; the level of evidentiary detail required is situational

Reasoning

Both subsections turn on the word 'intends'. Intention is a mental state requiring external evidence, but the statute does not demand completed implementation. Auto Engineering holds the burden is on the landlord to establish a firm and settled intention; architectural plans, business plans, funding or company documents are evidentiary tools, not the legal test itself. The burden is equally on the landlord under Section 7(1)(g).

p. 11
03

Whether the Tribunal's decision was against the weight of evidence

Holding

No; the landlord failed to attach proof of its intended use of the premises, and the notice lacked specificity

Reasoning

The burden was on the appellant to show its intention was genuine and not for ulterior motives. It adduced no documentary corroboration such as development plans, proof of funds, business registration or the entity through which occupation would be effected. The Tribunal could not consider rent arrears or other grounds not stated in the termination notice, and the landlord remains at liberty to issue a fresh notice subject to Section 9(3) of the Act.

p. 12

Legal principles established

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  • A landlord's right to property under Article 40 is not absolute and may be limited by statute
  • A landlord terminating a controlled tenancy under Section 7(1)(f) or (g) of Cap. 301 bears the burden of proving a bona fide, firm and settled intention, not completed implementation
  • A tribunal may not allow termination of a tenancy on grounds other than those in the termination notice

Court orders

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  1. 1.Finding of no merit in the Appellant's appeal
  2. 2.The appeal is dismissed with costs to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Business Premises Rent Tribunal
BPRT E032 OF 2024
Jurisdiction invoked
First appellate jurisdiction under Section 79B of the Civil Procedure Act over a Business Premises Rent Tribunal decision under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301

Relief refused

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Allowance of the appeal and variation of the Tribunal's finding to order the tenant to vacate LR 3734/1201 with immediate effect

The Tribunal applied the correct standard of proof and its decision was not against the weight of evidence

p. 13

Costs of BPRT E032 OF 2024 awarded to the Landlord

The Tribunal's order that each party bear its own costs was not disturbed and the appeal failed

p. 13

Costs

The appeal is dismissed with costs to the Respondent (the Tribunal below had ordered each party to bear their own costs).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is therefore my finding that a Landlord's right to property is not absolute and may be limited by statute.
p. 10Constitutional property rights and statutory limitation
In my view, the Landlord has to prove a bona fide, firm and settled intention. The law does not require proof of completed implementation.
p. 11Standard of proof of landlord's intention under Section 7(1)(f) and (g) of Cap. 301
The appeal is dismissed with costs to the Respondent.
p. 13Final orders
Due to the foregoing, I find no merit in the Appellant's appeal.
p. 13Final orders

Issues in the judgment

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minor

Citation of Cunlifie v Goodman appears inconsistently and with a typographical year/series in the judgment

minor

The same English authority is cited with two different citations in the judgment

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, "Beige Investments Ltd v Kagwi (Environment and Land Appeal E074 of 2025) [2026] KEELC 3832 (KLR)", Case Analysis (2026). BPRT E032 OF 2024 (Appeal therefrom, Memorandum of Appeal dated 15/4/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3832/eng@2026-06-18

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