Tenkeya v Oenga t/a Olive OR Twist (Environment and Land Appeal E006 of 2025) [2026] KEELC 4068 (KLR)
The bottom line
#Kenya's Environment and Land Court in Kajiado overturned a landlord's contempt conviction, ruling rent disputes for controlled tenancies belong to the Rent Tribunal, not magistrates' courts.
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 trial court possessed the requisite jurisdiction to entertain and determine the dispute
- 2.Whether the interim orders issued on 1st December 2020 had lapsed, and whether they could validly form the foundation for contempt proceedings
- 3.Whether the trial court erred in law and fact by failing to consider the subsequent court order dated 16th February 2022 and the eventual lapse of the tenancy agreement
- 4.Whether, in light of the foregoing, the Appellant was lawfully and properly cited for contempt of court
- 5.Whether the appeal has merit, and what final orders and reliefs ought to be granted by this Court
Key legal issues
#Jurisdiction of the trial court over a controlled tenancy dispute
The trial court lacked jurisdiction; disputes over controlled tenancies, including distress for rent, are the exclusive mandate of the Business Premises Rent Tribunal under Cap 301.
The relationship emanated from a commercial lease amounting to a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301. Section 14 vests power over distress for rent in the Tribunal. The magistrate assumed a mandate Parliament gave to the BPRT, and proceedings conducted without jurisdiction are void from inception.
Lapse of interim orders of 1 December 2020
The ex parte interim orders expired by operation of law after fourteen days and could not found contempt proceedings years later.
The inter partes hearing was never conducted and no extension was issued. Under Order 40 Rule 4(1) of the Civil Procedure Rules, ex parte injunctions cannot last longer than fourteen days. An order that has lapsed cannot be breached because no order remains in existence capable of being disobeyed.
Failure to consider the order of 16 February 2022 authorising distress
The trial court misdirected itself by ignoring a subsisting order that expressly sanctioned the conduct complained of.
The order of 16 February 2022 expressly authorised the Appellant to levy distress for rent and had neither been set aside nor varied. Ignoring it was a failure to exercise discretion judiciously, producing inconsistent outcomes and substantial injustice.
Whether contempt was properly established
The contempt finding could not be sustained: the tenancy had lapsed on 30 June 2023 and no valid subsisting order existed.
Contempt is quasi-criminal and demands strict proof of a valid subsisting order, knowledge, and wilful disobedience. By July 2023 the tenancy had terminated and been followed by eviction; the substratum of the dispute was gone, and contempt does not retrospectively punish conduct undertaken when the foundational order had ceased to exist.
Legal principles established
#- Jurisdiction is determined by the Constitution or statute and cannot be conferred by consent, waiver or acquiescence; proceedings conducted without jurisdiction are void from inception
- An expired ex parte interim order loses its coercive force and cannot found contempt proceedings
- Contempt requires proof of a valid and subsisting order, knowledge of it, and deliberate disobedience
- A court cannot authorise a litigant to do an act and then punish that litigant for doing it
Court orders
#- 1.The Appeal is hereby allowed
- 2.The Ruling and Orders of Hon. B. Kagoni, SPM, delivered on 10th December 2024 in Kajiado CMCC No. E42 of 2020 are set aside in their entirety
- 3.Kajiado CMCC No. E42 of 2020 is struck out for want of jurisdiction
- 4.The Appellant is awarded the costs of the Appeal and the costs of Kajiado CMCC No. E42 of 2020
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Kajiado Chief Magistrate's Court
- CMCC No. E42 of 2020
- Jurisdiction invoked
- Section 78(1) of the Civil Procedure Act, Cap 21 (first appellate jurisdiction)
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.
A. THAT the Appeal is hereby allowed.
B. THAT the Ruling and Orders of Hon. B. Kagoni, SPM, delivered on 10th December 2024 in Kajiado CMCC No. E42 of 2020, are hereby set aside in their entirety.
C. THAT Kajiado CMCC No. E42 of 2020 is hereby struck out for want of jurisdiction.
D. THAT the Appellant is awarded the costs of this Appeal and the costs of the Kajiado CMCC No. E42 of 2020.
Jurisdiction is everything. Without it, a court has no power to make one more step.
An order which has lapsed by effluxion of time cannot be said to have been breached. There is no longer any order in existence capable of being disobeyed.
Issues in the judgment
#The judgment states the appeal canvassed by written submissions was delivered on 2 July 2026, while the appellant's submissions are dated 13 November 2025 and the Memorandum of Appeal 28 January 2025; the delivery date appears unusually late but is internally consistent on the record as printed.
Prior decision treatment recorded as set_aside_in_part although the court set aside the ruling 'in their entirety', because the setting aside is coupled with striking out the underlying suit rather than a substitution of judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tenkeya v Oenga t/a Olive OR Twist (Environment and Land Appeal E006 of 2025) [2026] KEELC 4068 (KLR)", Case Analysis (2026). ELCLA/E006/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4068/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.