Miano & 2 others v Mbaka t/a Branden Junior School (Land Case Appeal E003 of 2025) (Environment and Land) [2026] KEELC 4019 (KLR)
The bottom line
#A Kenyan court threw out a Ksh 4.17 million rent award because the Rent Tribunal had no power over an 8-year lease that required arbitration first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Business Premises Rent Tribunal (BPRT) had the requisite subject-matter jurisdiction to hear and determine the reference
- 2.Whether the Appellants' subsequent procedural conduct at the trial level erased their right to rely on the lease's dispute resolution clause
- 3.Whether the Tribunal reference was barred by the doctrine of res judicata
- 4.Whether the Tribunal violated the principles of natural justice by entering a final monetary award on 30th January 2025
Key legal issues
#Whether the lease constituted a controlled tenancy under Section 2(1)(b)(ii) of Cap 301 conferring jurisdiction on the BPRT
The lease was not a controlled tenancy; it was an 8-year commercial lease with a forfeiture clause for breach of covenant, falling outside Cap 301, so the Tribunal lacked subject-matter jurisdiction ab initio.
The court read the lease holistically. Clause 4(d)'s 12-month fault-free notice mechanism could have triggered BPRT jurisdiction, but Clause 4(a) was a classic commercial forfeiture clause allowing immediate re-entry for breach (non-payment of rent). Applying South C Fruit Shop, a written lease exceeding five years is excluded from the controlled tenancy definition unless it contains termination otherwise than for breach. The Tribunal therefore acted without jurisdiction.
Whether the arbitration clause barred the reference to the Tribunal
Yes. The clause established arbitration as a condition precedent, with courts as 'last option', so the Landlady's reference filed on 28th August 2024 without attempting arbitration was premature and incompetent.
The clause required mutual appointment of an arbitrator 'rather than filing court cases' with courts as 'last option'. The court held this was a mandatory contractual bar and a negative covenant not to sue before arbitration. Party autonomy and Article 159(2)(c) of the Constitution require enforcement of such bargains. Section 7 of the Arbitration Act allowed interim protective measures without abandoning arbitration, but the Landlady filed a full substantive reference seeking final monetary judgment instead.
Whether the Appellants' consent compromising the preliminary objection could confer jurisdiction on the Tribunal
No. The consent of 13th December 2024 was a legal nullity incapable of conferring subject-matter jurisdiction on a statutory tribunal.
Relying on Samuel Kamau Macharia v Kenya Commercial Bank, jurisdiction flows from the Constitution or legislation and cannot be conferred by consent, acquiescence or procedural default. Since the Tribunal lacked capacity under its parent Act, the consent order was an attempt to confer jurisdiction by acquiescence and could not authorise the multi-million-shilling monetary award of 30th January 2025.
Legal principles established
#- Where a lease exceeds a term of five years and retains a right of re-entry and forfeiture for breach of covenant, it falls outside the protective framework of Cap 301 and is not a controlled tenancy
- A statutory tribunal's lack of subject-matter jurisdiction cannot be cured by consent, waiver, acquiescence or participation of the parties
- An arbitration clause making arbitration a condition precedent to litigation renders a suit filed before arbitration premature and incompetent
Court orders
#- 1.The Judgment and all consequential orders of the Trial Court/Tribunal delivered on 30th January 2025 in BPRT No. E132 of 2024 are hereby set aside ex debito justitiae
- 2.The sum of Ksh 4,172,188/= shall be refunded and released forthwith to the Appellants together with any accrued interest thereon
- 3.The dispute is hereby referred to Arbitration in strict compliance with the dispute resolution clause of the Lease Agreement dated 1st May 2021
- 4.The costs of this Appeal and of the proceedings in the Tribunal below are awarded to the Appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal (Nakuru BPRT Case No. E132 of 2024)
- BPRT No. E132 of 2024
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal under the Landlords and Tenants (Hotels, Shops and Catering Establishments) Act (Cap 301)
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.
i. The Judgment and all consequential orders of the Trial Court/Tribunal delivered on 30th January 2025 in BPRT No. E132 of 2024 are hereby set aside ex debito justitiae.
iii. The dispute is hereby referred to Arbitration in strict compliance with the dispute resolution clause of the Lease Agreement dated 1st May 2021.
Since a court must lay down its tools when it finds it lacks jurisdiction, I need not determine the other issues hereinabove captioned.
No amount of consent or "participation" by the parties (the consent order signed by the advocate) can grant a statutory tribunal power it does not possess under the Act.
iv. The costs of this Appeal and of the proceedings in the Tribunal below are awarded to the Appellants.
Issues in the judgment
#Discrepancy in the decretal sum: the Tribunal ordered payment of Kshs. 4,142,188/= but the final order directs refund of Ksh 4,172,188/=
Discrepancy in the Respondent's Replying Affidavit date: pleaded as 12th March 2026 but submissions dated 23rd February 2026 were said to respond to the appeal admitted on 24th March 2026
The deposed Replying Affidavit refers to the consent date as 13th December 2025 while the trial record records it as 13th December 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miano & 2 others v Mbaka t/a Branden Junior School (Land Case Appeal E003 of 2025) (Environment and Land) [2026] KEELC 4019 (KLR)", Case Analysis (2026). Naivasha ELCLA No. E003 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4019/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.