Hammerkop Migration Camp Limited v Maasai Mara Conservancy & another

3. The 2nd Respondent urged the court to dismiss the instant application and the entire suit, and / or struck it out with costs. 4. The Preliminary Objection is opposed by the Petitioner herein. The court directed the said Preliminary Objection be canvassed rst by way of written submissions. 5. The 2nd Respondent/Objector led its written submissions dated 5th December 2025, through Allan Meingati, the County Attorney, and submitted on the statutory framework of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, which governs controlled tenancies. 6. The 2nd Respondent relied on Section 2(1) which denes Controlled tenancies and Section 12, which vests exclusive jurisdiction in the Business Premises Rent Tribunal (“BPRT”) to determine disputes arising thereunder and raised the following issues for determination; i. Whether the objection dated 6th October 2025 is merited. ii. Who bears the cost of this objection? 7. On whether the objection is merited and within the jurisdiction of this court, the 2nd Respondent relied on the case of Dr. A.W.G vs D.N.K & Crescent View Holdings Ltd, Petition No. E018 of 2021 HC, Nairobi. 8. Further, while interpreting Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, the 2nd Respondent relied on the case of Pritma vs Ratilal & another, Nairobi HCCC No.1499 of 1970[1972] EA 560. 9. On whether there was a landlord- tenant relationship, the 2nd Respondent dened tenancy as it is provided by Section 2 of Landlord and Tenant Act, and submitted that the lease entered into between the parties on 24th July 2016 is a conclusive evidence of Landlord- tenant relationship, and it reveals features of a Controlled tenancy, including a termination clause requiring six months’ notice, thereby bringing the tenancy within the purview of Cap 301. The 2nd Respondent relied on other decided cases such being:Republic v Chairperson, BPRT & Rosemary Wangari Chege, Ex-Parte Suraj Housing [2016] KEHC 4525, which claried that only controlled tenancies fall within the Tribunal’s jurisdiction, and that existence of a landlord-tenant relationship is a prerequisite to the application of Cap 301.Faraja Guest Apartment Ltd v Kendal Energy Solutions Ltd [2024] KEBPRT 1890, which reinforced that controlled tenancies alone fall within the Tribunal’s remit. 10. The 2nd Respondent argued that the Petitioner’s business (Hammerkop Campsite) of providing accommodation, meals, drinks and hospitality services falls squarely within the denitions of a “hotel” or “catering establishment” under Section 2(1), thereby satisfying the statutory character of a tenancy governed by Cap 301. 11. The Respondent further invoked Section 12(1)(e), of empowering the Tribunal to adjudicate disputes on eviction, recovery of possession, arrears, mesne prots, and compensation. In addition, reliance on Section 12(3) underscores that valuations, inspections, and assessments are the exclusive function of the Tribunal, rendering the Petitioner’s reliance on a private valuation report (TSM-12) dated 25th November 2024 by Sterling Auctioneers Limited misplaced. Further, the said valuation was indicative of the Tribunal’s proper jurisdiction. 12. To reinforce the jurisdictional challenge, the 2nd Respondent raised the doctrine of constitutional avoidance, and relied on the cases of: -Naomi Kemunto Amuguni v Sisters of Mercy (2025),Ibrahim Wakhanyanga v Chief Magistrate’s Court Kakamega (2022), andGabriel Mutava & 2 others vs Managing Director Kenya Ports Authority & another [2016] eklr, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18479/eng@2025-12-18 2

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which collectively articulate the principle that constitutional litigation should not be invoked where adequate statutory mechanisms exist. 13. The 2nd Respondent further submitted that the Petitioner improperly escalated ordinary tenancy and contractual disputes into a constitutional petition, despite the existence of an elaborate statutory scheme complete with an appellate pathway under Section 15 of Cap 301. 14. The 2nd Respondent further submitted that, having established the exclusive jurisdiction of the Tribunal, and the Petitioner’s failure to exhaust statutory remedies, the 2nd Respondent prays that the Preliminary Objection be upheld and the Petition be struck out. 15. On costs, the 2nd Respondent relied on the case of Haraf Traders Ltd vs Narok County Government [2019] eklr, which supports the argument that the unsuccessful party must bear costs, particularly where litigation is improperly instituted. 16. In opposition to the Preliminary Objection, the Petitioner led its written submissions dated 12th November 2025, b through JGS LAW LLP, and raised one issue for determination being;i. Whether the Application and suit is fatally incompetent pursuant to Section 2(1) and 12(1) of the Landlord and Tenant (Shops, hotels and catering establishments) Act Cap 30. 17. The Petitioner submitted that the Preliminary Objection cannot stand as it raises factual matters, particularly the nature and origin of leases issued before the Maasai Mara Conservancy obtained a title deed, and before standardized registered leases were introduced under the Maasai Mara National Reserve Management Plan 2023–2033. 18. The Petitioner further submitted that the lease it hold was granted in 2016 before the 2nd Respondent was given mandate to managed the 1st Respondent, and before the 1st Respondent had a title, therefore no lease could have been registered. 19. On the legal merits, the Petitioner argued that Cap 301 applies only to controlled tenancies, dened in Section 2(1) as tenancies not exceeding ve years or containing termination clauses within ve years. Since the Petitioner’s lease is for 25 years (commencing 24th July 2016), then it is not a controlled tenancy. 20. Reliance was sought in the case of Kiptoo v North Eastern Investment Limited & another (Tribunal Case E1424 of 2024) [2025] KEBPRT 222, where the Tribunal held that; “ 6. The tribunal has perused the lease agreement signed by the 2nd Respondent and the tenant/Applicant dated 2nd December 2022 and nds that the said lease agreement would run for a period of 6 years and has no termination clause thereby making it an uncontrolled tenancy. 7. Section 2(1) of Cap301 Laws of Kenya denes a controlled tenancy as follows; a. Which has not been reduced into writing; or b. which has been reduced into writing and which; i. is for a period not exceeding ve years; or ii. contains provision for determination, otherwise than for breach of covenant, within ve years from the commencement thereof or https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18479/eng@2025-12-18 3

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iii. 8. relates to premises as a class specied under subsection (2) of this section.” in view of the foregoing provision of the applicable law, it is clear that where a tenancy has been reduced into writing and is for a period of more than 5 years, and has no termination clause, this tribunal would not have jurisdiction to hear and determine any dispute arising therefrom.” 21. The Petitioner further submitted that the Respondents’ on 4th September 2025, through their agents unlawfully and without any justiable reasons or cause, raided the Petitioner’s Camp site destroying it and unlawfully detained its sta and conscated their mobile phones at gun point. 22. The Petitioner further submitted that the alleged forceful eviction violated constitutional rights under Articles 28, 29 and 40 of the Constitution , and that the Environment and Land Court has jurisdiction to determine the constitutional violations relating to land as armed in Lorunyei & another v Attorney General & 3 others (ELC Petition 1 of 2023) [2025] KEELC 3053, where the Court held that under Article 23(1), as read with Articles 165(5)(b) and the ELC Act, Section 13, the ELC may determine petitions involving infringement of property rights. 23. Accordingly, the Petitioner argued that the Preliminary Objection is meritless and should be dismissed with costs. 24. The above are the ground in support of the Preliminary Objection and the submissions for and against the said Preliminary Objection, which this court has carefully considered. 25. Preliminary Objection was dened in the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 to mean; “ A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”. 26. Further page 701, Sir Charles Newbold, P held; “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”. 27. From the above denition, it is clear that a Preliminary Objection is on pure points of law, and it is capable of disposing o the matter preliminarily. See the case of Quick Enterprises Ltd v Kenya Railways Corporation, Kisumu High Court Civil Case No 22 of 1999. 28. Further, in the case of, Oraro vs. Mbaja [2005] 1 KLR 141, the court held as follows; “ ….I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identied as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18479/eng@2025-12-18 4

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evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.” 29. In Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, the court observed that a Court in determining a Preliminary Objection can look at the pleadings and other relevant documents, but it must abide by the principle that the Preliminary Objection must raise pure points of law. The court held: “ …In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to le adavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion. 30. Before delving into the merit of the Preliminary Objection, the court will rst determine whether what has been raised by the 2nd Respondent is indeed a Preliminary Objection as per the above denition. 31. The 2nd Respondent averred that the suit entire suit and the accompanying Application are fatally defective, for contravening the provisions of Cap 301, and thus the court lacks jurisdiction. 32. The issue of contravening provisions of law, and lack of jurisdiction goes to the core of any pleadings, and is therefore a pure point of law. Therefore, it is evident that a challenge to jurisdiction is indeed a pure point of law and thus a proper Preliminary Objection because it questions the court's fundamental power to hear the case, not the merits of the facts, and is thus a pure point of Law. 33. In the case of Mary Wambui Munene v. Peter Gichuki Kingara and Six Others, [2014] eKLR, the Supreme Court spelt out the place of jurisdiction, and observed thus:… ‘jurisdiction is a pure question of law’ and should be resolved on priority basis. 34. Therefore, this Court is persuaded that the challenge on jurisdiction based on claim that the suit is fatally incompetence for contravening the provisions of CAP 301, is a pure question law, capable of disposing the suit at once. Thus the court nds and holds that the Preliminary Objection herein is a pure point of law as described in the Mukisa Biscuits case above. 35. The next issue is whether the said Preliminary Objection is merited. 36. It was the 2nd Respondent’s submissions that jurisdiction is everything, and without it, the court has no option, but to down its tools. It submitted that this court lacks jurisdiction because the issues raised herein involves a landlord and tenant relationship, which relationship is controlled and enforced through Cap 301 Laws of Kenya. 37. The 2nd Respondent further argued that a scrutiny of the tenancy agreement on page 5 para 1 on Renewal which expressly provides that either party may issue a six months’ Notice of termination, and thus this brings the agreement squarely within the statutory denition of a controlled tenancy, and the suit ought to have been led before the BPRT. 38. On its part, the Petitioner submitted that the lease in issue is for a period of 25 years, and it falls outside the purview of controlled tenancy, since it is a long term lease. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18479/eng@2025-12-18 5

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39. The court has considered the lease agreement in issue between the Petitioner and the 2nd Respondent, and it is clear that the said lease is for a period of 25 years, commencing on 24th July 2016, and thus is a long term lease. 40. Under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301), a tenancy is "controlled" only if:i. It is not in writing.ii. It is in writing but for a period not exceeding ve years.iii. It contains a provision for termination within ve years from commencement (other than for a breach of covenant). 41. Therefore, the lease in issue was commenced on 24th July 2016, for a period of 25 years, and does not fall in the above category. 42. Further, the 2nd Respondent submitted that on page 5 of the lease agreement, para 1 on Renewal it provided that either party may issue six months termination notice, and thus this clause brings the suit squarely within the denition of controlled tenancy. However, Section 2(iii) provides provisions for termination within 5 years. Para 1 on renewal is after the expiry of the lease period, which is 25 years, and that cannot qualify the lease herein to be a controlled tenancy. 43. It is evident Para 1 on Renewal is a standard form clause and a standard clause requiring a tenant to give notice to renew a long-term lease such as 25 years, does not qualify it as a controlled tenancy. 44. Under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301), a written lease only becomes "controlled" if it is for a term of ve years or less, or if it contains a clause allowing for termination within the rst ve years, but not a notice for renewal. 45. It is evident that a renewal notice is meant to extend the relationship, not to terminate it within the restricted ve-year window. Under Section 2 of Cap 301, it specically targets clauses that make a tenancy "determinable" or terminable within ve years. A renewal option at the end of a 25-year term does not make the lease terminable during that initial ve-year period, and thus the court cannot nd and hold that the six months’ notice of termination qualies the lease herein as controlled tenancy. 46. For the above reasons, this court nds and holds that the lease herein in issue is not a controlled tenancy and the Preliminary Objection is not merited. 47. Consequently, the said Preliminary Objection is dismissed with costs being in the cause. Let the matter proceed for hearing and be determined on merit. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 18TH DAY OF DECEMBER 2025 L. GACHERU JUDGE Delivered online in the presence of Elijah Meyoki - Court Assistant Mr. Majimbo for Petitioner Mr. Migwi holding brief for Mr. Mengati for 2nd Respondent/Objector https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18479/eng@2025-12-18 6

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