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ELCPartially AllowedNot stated in the judgment

Nyaoga t/a Monte Carlo Lounge v Oriki (Environment and Land Appeal E011 of 2024) [2026] KEELC 4623 (KLR)

Environment and Land Court
16 July 2026
2,212 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court has confirmed that tribunals cannot decide an entire landlord-tenant dispute on an interim application—tenants are entitled to a full hearing with evidence.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Kisii against a ruling of the Business Premises Rent Tribunal (Vice Chair P. Kitur) dated 26th February 2025. The Respondent landlord had filed a Reference under section 12(4) of Cap 301 complaining of unpaid rent, together with a notice of motion dated 7th October 2024 seeking a temporary injunction against disposal or subletting of the premises, an order for the tenant to pay arrears of Kshs 1,390,000 within 14 days failing which distress would issue, and vacant possession. The tenant (Appellant) denied the arrears and relied on clause 1.1(a)(v) of the lease of 6th October 2020, which provided that renovation costs be shared equally between the parties, contending that over Kshs 10,000,000 spent on renovations should be offset against rent. The Vice Chair allowed the application and granted final orders, including payment of arrears, distress in default, and vacant possession by 31st March 2025. On appeal, A. Omollo J framed two issues: whether final orders could be granted at an interlocutory stage, and whether the tenant was in arrears. The court held that a Reference remained pending with contested issues, so granting final relief on an interlocutory application denied the Appellant an opportunity to present evidence and was not a judicious exercise of discretion. The lease clearly provided for sharing renovation costs, and the demand letters did not specify the arrears with certainty. The appeal was allowed in part: the arrears, distress and vacant possession orders were set aside, the temporary injunction was upheld pending determination of the Reference, the file was remitted to the BPRT for hearing before another officer, and the Appellant was awarded the costs of the appeal.

Questions the Court framed

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

  1. 1.Whether or not the learned Vice-Chair erred in granting final orders in an interlocutory application
  2. 2.Whether or not the learned Vice Chair erred in holding the appellant owed rent arrears

Key legal issues

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01

Whether final orders granting payment of arrears, distress and vacant possession could properly issue on an interlocutory application

Holding

No - the Vice Chair failed to exercise discretion judiciously; contested issues remained in the pending Reference and required viva voce evidence

Reasoning

The Reference remained pending and could not be treated as spent. The motion sought final relief (payment of arrears, distress, vacant possession) which would dispose of the substance of the dispute. Granting it at interlocutory stage denied the Appellant the opportunity to adduce evidence on the contested renovation offset. The court applied the cautionary principle on mandatory interlocutory injunctions that would grant a major part of the relief claimed.

p. 5
02

Whether the Tribunal erred in holding the Appellant owed rent arrears despite clause 1.1(a)(v) on shared renovation costs

Holding

The lease clearly provided that renovation costs be shared equally; the demand letters did not specify the amount owing with certainty; the arrears question required evidence at the hearing of the Reference

Reasoning

Clause 1.1(a)(v) provided that costs of repairs would be shared equally between the parties. The burden of proving the arrears lay on the Respondent, and the demand letters of 5th October, 2021 and 9th June, 2022 did not specify the amount with certainty. The court, as first appellate court, analysed the evidence afresh and found the Tribunal's conclusion could not stand at the interlocutory stage.

p. 4
03

The scope of the first appellate court's powers over the Tribunal's discretionary decision

Holding

The appellate court may analyse the evidence afresh to determine whether the Tribunal exercised its discretion judiciously

Reasoning

Relying on the Supreme Court's criteria in Apungu Arthur Kibira, the judge proceeded to analyse the evidence before the BPRT to establish whether the discretion was exercised judiciously. The court found errors of principle: granting final relief at an interlocutory stage and failing to address the net effect of the orders vis-à-vis the pending Reference.

p. 4

Legal principles established

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  • A Tribunal or court cannot determine the whole dispute and issue final orders at an interlocutory stage where contested issues remain pending in a Reference, as this denies a party the opportunity to present evidence.
  • An application for a mandatory injunction which would amount to the grant of a major part of the relief claimed in the action should be approached with caution and granted only in a clear case.
  • Criteria for interfering with a decision made in exercise of a discretion: demonstration of an error of law or principle; taking account of irrelevant considerations; failing to take account of relevant considerations; or that the decision is plainly wrong.

Court orders

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  1. 1.The appeal allowed and the orders issued on 26th February, 2025 varied
  2. 2.The reliefs under paragraphs i), iii)-vii) of the Ruling set aside and/or dismissed, including the order to clear arrears of Kshs 1,390,000 by 4th March, 2025, the distress for rent in default, and the order for vacant possession by 31st March, 2025 with police assistance
  3. 3.The order of temporary injunction upheld, to remain in force pending determination of the Reference
  4. 4.The file referred back to the BPRT for hearing before another officer of that Tribunal other than hon Vice Chair P. Kitur
  5. 5.The Appellant awarded the costs of this appeal

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
Not stated
Jurisdiction invoked
First appellate jurisdiction over the Business Premises Rent Tribunal (Cap 301, Rent Restriction Act regime); appeal lodged against the Vice Chair's ruling

Relief refused

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Appellant's challenge to the finding on rent arrears as a final determination of liability

The court varied rather than wholly reversed: the arrears question remains open for determination in the Reference; only the interlocutory final orders were set aside

p. 5

Setting aside the temporary injunction granted to the Respondent

The injunction was properly granted as an interim measure pending the Reference

p. 5

Costs

The Appellant is awarded the costs of this appeal.

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.

Hence, merit in the argument that the Vice Chair erred in determining the dispute between the parties by an interlocutory application, denying the Appellant an opportunity to present evidence.
p. 3Final orders at interlocutory stage
It is on this basis that I hold that the trial magistrate did not exercise his discretion judiciously in granting final orders at an interlocutory stage.
p. 5Judicial discretion
Such an application should be approached with caution and the relief granted only in a clear case.
p. 4Interlocutory mandatory injunction
The reliefs under the paragraphs i), iii)-vii) of the Ruling are set aside and/or dismissed.
p. 5Final orders
The file is referred back to the BPRT for hearing before another oficer of that Tribunal other than hon Vice Chair P. Kitur.
p. 5Remission for hearing
The order of injunction granted is upheld and to remain in force pending determination of the Reference.
p. 5Injunction upheld
The Appellant is awarded the costs of this appeal.
p. 5Costs

Issues in the judgment

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minor

Date of the impugned Tribunal ruling is inconsistently stated as 26th February, 2026 and 26th February, 2025

minor

The rent arrears figure is inconsistently stated as Kshs 1,320,000 in the Reference and Kshs 1,390,000 in the motion

minor

The appellate judge refers to the Tribunal Vice Chair as "trial magistrate"

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, "Nyaoga t/a Monte Carlo Lounge v Oriki (Environment and Land Appeal E011 of 2024) [2026] KEELC 4623 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4623/eng@2026-07-16

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