Moyale Mall Limited & 2 others v Ali & 18 others (Environment and Land Appeal E012 of 2026) [2026] KEELC 3965 (KLR)
The bottom line
#Kenya's Business Premises Rent Tribunal cannot grant injunctions; tenants needing eviction protection must go to the Environment and Land Court or High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the tenancies are controlled tenancies within section 2 of Cap. 301
The preliminary objection was properly dismissed: whether paragraph E (one month's notice termination) was struck out before execution is a contested question of fact incapable of determination on a preliminary objection; on the assumption the leases are as pleaded, the tenancies are controlled
Clause 14(e) is a renewal option, not a termination clause, so the Tribunal Member erred in relying on it. However, paragraph E of the sample lease provides for termination by one calendar month's notice by either party, which on its face brings the tenancy within section 2. The landlord's contention that paragraph E was struck out and counter-signed before execution is a factual contention requiring examination of each original lease, and the sample lease (stall G2R) carries paragraph E intact, suggesting non-uniformity. The objection therefore could not succeed as a pure point of law.
Whether the Tribunal had jurisdiction to grant the temporary injunction
No. The Tribunal's powers under section 12(1) do not include the power to grant injunctions, whether temporary or mandatory; the ex parte orders of 3rd October 2025 and extensions were nullities
The Tribunal is a creature of statute whose powers are exhaustively enumerated in section 12(1); injunctions are not among them. By expressio unius est exclusio alterius, no residual or inherent equitable jurisdiction exists. The interim/substantive distinction advanced by the tenants fails because want of power goes to the nature of the remedy, not its duration. The tenants' protective remedy lies in a court of equitable jurisdiction.
Costs
Each party to bear its own costs of the appeal given divided success; costs in the Tribunal to abide the outcome of the reference
Costs follow the event under section 27(1) of the Civil Procedure Act but remain discretionary. The landlord failed on striking out the reference but succeeded on the injunction point, and the appeal raised genuine unsettled jurisdictional questions which it was in the public interest to clarify.
Legal principles established
#- The Business Premises Rent Tribunal has no statutory power to grant injunctions, whether temporary or permanent; orders of injunction issued by it are nullities
- A preliminary objection cannot succeed where it depends on establishing facts, such as whether a clause was struck out before execution
- A clause conferring an option to renew is not a termination clause within section 2 of Cap. 301
- A tenant requiring interim protection against threatened eviction pending a tenancy dispute must seek it from a court clothed with equitable jurisdiction, not the Tribunal
Court orders
#- 1.The appeal is allowed in part
- 2.The interim orders of temporary injunction issued by the Tribunal on 3rd October 2025, and all extensions thereof, are set aside as having been made without jurisdiction
- 3.Save as aforesaid, the Ruling of the Tribunal delivered on 2nd January 2026 dismissing the preliminary objection dated 22nd October 2025 is upheld, and the finding that clause 14(e) of the leases constitutes a termination clause is set aside
- 4.The reference is remitted to the Business Premises Rent Tribunal to determine, on evidence and as a preliminary issue, whether the tenancies between the parties are controlled tenancies within the meaning of section 2 of Cap. 301, and only if that question is answered in the affirmative to proceed to hear and determine the reference on its merits; provided that the Tribunal shall not grant or sustain any order of injunction
- 5.Each party shall bear its own costs of the appeal; the costs in the Tribunal shall abide the outcome of the reference
- On appeal from
- Nairobi Business Premises and Rent Tribunal (Hon. Patricia May, Member)
- BPRT Case No. E1107 of 2025
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moyale Mall Limited & 2 others v Ali & 18 others (Environment and Land Appeal E012 of 2026) [2026] KEELC 3965 (KLR)", Case Analysis (2026). BPRT Case No. E1107 of 2025 (appeal therefrom; amended memorandum of appeal dated 4th March 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3965/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.