Sava v Matano & another

c. 4. That an order of permanent injunction be Issued restraining the Respondents from demolishing and or evicting the Applicant's house located at Diani on Plot No, Kwale/ Ukunda/3377 pending the hearing and determination of the suit. The application was premised on the grounds, the testimonial facts and averments made by the 11 Paragraphed annexed supporting adavit of JOSEPH MUSEE SAVA a resident in Diani. The adavit was together with three (3) annextures marked as a “JMS - 1 to 3”. The Deponent averred that: a. He was an adult male of sound mind, residing in Diani within the Republic of Kenya, and duly authorized to swear the adavit in support of the present application. b. At all material times relevant to these proceedings, he had been the owner of a house without land erected on a portion of land known as Plot No. Kwale/Ukunda/3377. c. In or around the year 2001, he entered into a lease agreement with the late Rama Matano Mwaurinda, who permitted him to construct his business on a portion of the said property upon payment of the agreed consideration and a monthly ground rent of a sum of Kenya Shillings Five (Kshs. 500/=). A copy of the lease agreement was annexed and marked as “JMS - 1.” d. Upon obtaining all requisite building plans and approvals from the relevant authorities, he proceeded to construct his business premises on the said plot. A copy of the approved building plan was annexed and marked as “JMS - 2.” e. Further, upon obtaining a business permit, he commenced operations of a bar and restaurant on the premises and has, since the commencement of the business, consistently paid the monthly ground rent of a sum of Kenya Shillings Five Hundred (Kshs. 500/=), which payments are evidenced by the Mpesa statements annexed and marked as “JMS - 3.” f. Upon obtaining a business permit, he commenced operations of a bar and restaurant business on the deceased’s property and has, to date, been paying the monthly ground rent of a sum of Kenya Shillings Five Hundred (Kshs. 500/=). He produced Mpesa statements as evidence, annexed and marked as “JMS - 4.” He added that around the year 2010, the said Rama Matano passed away, leading to the appointment of the Defendants as administrators of his estate. g. Following the demise of the deceased, the Defendants had been harassing him by issuing threats of eviction and demolition of his business premises. h. The Respondents had been sending individuals, whom he described as goons, to his business premises at night to threaten demolition and damage to his property, thereby endangering both him and the premises. i. The Defendants had interfered with his peaceful enjoyment of the premises by forcefully removing gutters from the business structure and covering the drainage system, actions which resulted in ooding and disruption of his business operations. j. Unless the Court intervened, he stood to be deprived of his right to property and his sole source of livelihood, should the Defendants proceed with eviction or demolition. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 2

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III. The responses by the 1st Defendant/Respondent 5. The 1st Defendant/Respondent opposed the application through a 17 Paragraphed Replying Adavit sworn on 19th March 2025 by Fatuma Rama Matano a Resident of Ukunda within the County of Kwale who averred as follows that:a. The 1st Respondent was an adult female of sound mind and disposition and therefore competent to swear the adavit led in opposition to the application. b. She was the 1st Respondent/Defendant in the matter and was fully conversant with the facts of the case. She further indicated that she swore the adavit both on her own behalf and on behalf of the 2nd Respondent/Defendant. c. She had read and understood the Applicant’s Application dated 13th February 2025 and opposed it in its entirety on the grounds that it was “res judicata”, scandalous, vexatious, frivolous, and amounts to a gross abuse of the court process. d. This Honourable Court lacked jurisdiction to hear and determine the dispute since the Issues raised were purely those arising from the termination of a tenancy agreement between the parties. Indeed, the tenancy was terminated through a Termination Notice dated 11th October 2023 for, among other reasons, non-payment of rent by the Applicant. A copy of the termination notice was annexed and marked as “FRM - 1.” e. The Applicant himself admitted in Paragraph 5 of his supporting adavit and through annexure marked as “JMS - 3”, that he paid a monthly rent of a sum of Kenya Shillings Seven Thousand and Fifty (Kshs. 7,050/=) to the Respondent. The Respondent contended that this was a clear admission that the Applicant was a tenant and therefore had approached the wrong forum. f. After being served with the termination notice, the Applicant led a Reference before the Business Premises Rent Tribunal (Hereinafter referred to as “The BPRT”) challenging the said notice. The BPRT subsequently delivered its ruling dismissing the Reference. Copies of the ruling dated 5th August 2024 and the decree dated 15th August 2024 were annexed and marked as “FRM - 2 and 3.” g. In the Reference led before the BPRT, the Applicant relied on a Lease Agreement dated 3rd February 2002 between himself and the deceased, the late Rama Matano Maurinda, whose estate she now administered jointly with the 2nd Respondent. A copy of the lease agreement was annexed and marked as “FRM - 4.” h. The Applicant appealed against the Tribunal’s ruling to the High Court, but the appeal was dismissed with costs after the Applicant’s advocate withdrew it on 3rd February 2025. A certied copy of the High Court proceedings conrming the withdrawal was annexed as “FRM - 5.” i. The dispute was purely a Landlord – Tenant dispute, which had already been heard and determined by the competent Tribunal, and therefore this Court lacked jurisdiction to entertain it. j. The Applicant was abusing the court process by engaging in forum shopping, ostensibly in the hope of securing favourable interim orders to evade payment of monthly rent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 3

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k. Even if jurisdiction existed, the prayers sought in the Plaint never related to land disputes. The prayers sought in the application diered materially from those in the main suit, rendering both the application and the suit fatally defective, and therefore liable to dismissal with costs. l. The agreement relied upon by the Applicant and marked as “JMS - 1” was invalid, as it was not executed or witnessed by the parties, contained no provision for compensation by the lessor for any developments and any claim arising from it would in any event be time - barred. m. The Respondent emphasized that neither she nor the 2nd Respondent was seeking any developments allegedly made by the Applicant; rather, they only seek vacant possession of the land as it was before commencement of the tenancy. She asserted that the Applicant was at liberty to remove any developments he may had erected. n. She further stated that the Applicant had provided no evidence of lawful developments on the property. She argued that the drawing marked as “JMS - 2” was not approved by the relevant authorities, that there was no evidence of payment of the requisite fees to the County Government, and that nothing indicated the drawing related to the suit property. o. In the absence of approved plans and evidence of compliance with statutory requirements, the Respondent contended that any structure erected by the Applicant was illegal and ought to be demolished. She urged the Court not to sanction compensation for such a structure. p. The Respondent maintained that the application was devoid of merit and is intended solely to frustrate the Respondents from taking possession of the premises following the dismissal of the Reference by the BPRT. She added that the Applicant had abused interim orders Issued by both the Tribunal and this Court to avoid paying rent by hiding behind status quo orders protecting him from eviction. q. She concluded by stating that the contents of her adavit were true to the best of her knowledge, information and belief. IV. Submissions 6. On 7th October, 2025 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 13th February, 2025 be disposed of by way of written submissions. Pursuant to that, all parties complied. The Honourable Court proceeded to deliver its Ruling accordingly. A. The Written Submissions by the Plainti/Applicant 7. The Learned Counsel for the Applicant led submissions dated 3rd October 2025. Mr. Mwaniki Advocate commenced his submissions by stating that the present application was the Notice of Motion dated 13th February 2025, in which the Applicant sought for the above stated three ( 3 ) substantive prayers. The Learned Counsel noted that prayers (1) and (2) were granted at the interim stage, and that the only outstanding Issue for determination was prayer (3). He submitted that the Applicant had leased a portion of the suit property from the late Rama Matano, upon which he constructed his business premises. It was contended that following the death of the lessor, the Respondents, who were administrators of the estate, had on several occasions attempted to evict the Applicant from the premises. The Learned Counsel argued that such attempts at eviction precipitated the ling of the present application. It was further submitted that the Applicant stood to suer irreparable harm if he was evicted from his business premises, as the same constitutes his livelihood. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 4

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8. The Learned Counsel informed the Court that in the Plaint, the Applicant sought an order for valuation of the suit premises and that he be granted rst priority to purchase the portion of land on which his business stood. The Counsel argued that such reliefs was consistent with the long-standing judicial practice in house-without-land disputes, as recognized in various court decisions. The Counsel acknowledged that the Respondents had led a Replying Adavit dated 19th March 2025, raising jurisdictional objections and asserting that the dispute was one relating to termination of tenancy. 9. The Counsel submitted that a close reading of the Plaint never disclosed any claim relating to the termination of tenancy, nor did it fall within the purview of landlord–tenant disputes. It was argued that the Applicant’s claim was instead conned to the valuation of the land and his potential purchase of the same, and therefore falls squarely within the jurisdiction of this Court. The Counsel also addressed the procedural history of the matter, noting that the Respondents had previously led a case before the Business Premises Rent Tribunal, and that although an appeal had initially been led and withdrawn by previous the Counsel, the current appeal before this Court was properly lodged. The Counsel urged the Court not to dismiss the present proceedings on the basis of the Tribunal matter, arguing that the Applicant had now properly approached the Court. 10. In conclusion, the Counsel urged Court to allow the application and in particular, grant the prayer (3) of the application in order to preserve the substratum of the suit pending the hearing and determination of the main claim. The Counsel argued that preservation orders was necessary in order to prevent the main suit from being rendered nugatory through eviction or demolition before it was heard on its merits. B. The Written Submission by the 1st & 2nd Respondents 11. 12. Through the Law rm of Messrs. Mungai Kamau & Company Advocates, the Respondents led their written submissions dated 28th November, 2025. Mr. Mungai Kamau Advocate commenced by stating that the application by the applicant was opposed vide Replying Adavit dated 19th March 2025. The Respondents were challenging the jurisdiction of this Court to hear and determine the Issues in dispute on the grounds that the dispute was a landlord/tenant dispute and the suit herein was res judicata. The Learned Counsel held that the Courts derive their Jurisdiction from the Constitution, the Mother Statute creating the court, and other Acts of Parliament. He averred that the provision of Article 2 of the Constitution provides that: a. The Constitution is the supreme Law of the Land and binds all persons and State organs at both levels of government b. No person may claim or exercise state authority except as authorized under the Constitution. The Environment and Land Court is a creature of the Constitution and the Statute as provided for under Article 162 (2)(b) of the Constitution. It provides that:Parliament shall establish courts, with the status of the High Court, to hear and determine disputes relating to the environment and the use and occupation of and title to land. It further provides that Parliament shall determine the jurisdiction and functions of the courts. 13. Parliament enacted the Environment and Land Court Act and set out the jurisdiction of the Court. Section 13 of the Act outlines the jurisdiction of the court. 14. The provision of Section 13(7) of the Act gives the Environment and Land Court powers to make any order and grant any relief as the Court deems t and just, including:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 5

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15. (a) interim or permanent preservation orders, including injunctions; (b) prerogative orders; (c) award of damages; (d) compensation; (e) specic performance; (f) restitution; (g) declaration; or (h) costs. The Supreme Court of Kenya in the matter of:- Interim independent Electoral Commission (2011) eKLR court held, “Assumption of Jurisdiction by courts in Kenya is a subject regulated by the constitution, by statute Law and by principles laid out in Judicial precedents. "The Court further held, “Jurisdiction ows from the Law and the recipient court is to apply the same with any limitations embodied therein. Such a court may not arrogate to itself Jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intention of parliament where the wording or legislation is clear, and there is ambiguity." The Supreme Court further held in the case of: “Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 others/2012] eKLR, the Court held: “ A court's Jurisdiction ows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate itself jurisdiction." 16. The Learned Counsel held that based on the above provisions of the Law, land matters are a preserve of the Environment and Land Court, as held in the case of:- “National Land Commission v Afrison Export Import Limited& 10 others/2019] eKLR, the Court held:“ A plain reading of the above constitutional and statutory framework on the jurisdiction of the Environment and Land Court reveals that the Environment and Land Court which is the court contemplated under Article 162(2)(b) of the Constitution, has a broad constitutional jurisdiction to hear and determine disputes relating to the environment and the use, occupation, and title to land. The Constitution delegated powers to Parliament to legislate a legal framework elaborating on that broad constitutional framework. In so doing, Parliament at Section 13 (7)of the Environment and Land Court Act empowered the Court to make any order or grant any relief as the Court deems t and just." 17. Therefore, it the contention by the Learned Counsel that the Environment and Land Court does not have the jurisdiction to entertain this suit and grant the orders being sought herein. The main orders sought in the main suit of compensation of the value of the house, whereas there was no provision for compensation in the lease agreement, can only be heard and determined by an ordinary court and not this court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 6

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18. Secondly, whether this suit is “Res Judicata”. The provision of Section 7 of the Civil Procedure Act provides for Res Judicata and provides that:“ No court shall try any suit or Issue in which the matter directly and substantially in Issue has been directly and substantially in Issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such Issue has been subsequently raised, and has been heard and nally decided by such court." 19. The Respondents had conrmed at paragraphs 6,7 and 8 of the Replying Adavit that there were previous proceedings in the Business Premises Rent Tribunal between the same parties over the same subject matter that were heard and determined on merit, and later an appeal was preferred against the Judgment of the tribunal. 20. Thus, he held that the institution of the current suit was a forum shopping and a gross abuse of the Court process and a waste of judicial time. In order to buttress this argument, the Learned Court cited the case of:- Kivanga Estates Limited v National Bank of Kenya Limited |2014]eKLR” Court dismissed a suit for being an abuse of the court process. 21. Additionally, in the case of:- Christopher Orina Kenyariri ta Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others /2017] eKLR”, the Court stated:“ My understanding of the res judicata principle is that it is meant to lock out from the court system a party who has had its day in a court of competent jurisdiction from re-litigating the same Issues against the same opponent. Surely it would be a waste of the courts' valuable time if there were no tool for arresting such mischief." 22. In the long run, the Counsel submitted that there must be an end to litigation and urged the Honourable to dismiss this suit for being res judicata. 23. Whether the applicants had met the requirements for the grant of orders of injunction. The Learned Counsel argued that for a party to be granted an injunction order, the guiding principles are set out in the judicial decision of “Giella - v - Cassman Brown (1973) EA 358. This position was reiterated in numerous decisions from Kenyan courts and more particularly in the case of:- Nguruman Limited - v - Jan Bonde Nielsen & 2 others, CA No.77 of 2012 (2014) eKLR”, where the Court of Appeal held that:“ In an interlocutory injunction application, the Applicant has to satisfy the triple requirements to a, establish his case only at a prima facie level, b, demonstrate irreparable injury if a temporary injunction is not granted, and c, allay any doubts as to b, by showing that the balance of convenience is in his favour. These are the three pillars on which rest the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate, distinct, and logical hurdles which the applicant is expected to surmount sequentially”. 24. In the case of:- “Nguruman Limited (Supra)” the court dened a prima facie case as:“ The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 7

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restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion”. 25. The Judgement of the tribunal allowed the Respondents' claim and ordered the Applicant herein to vacate the premises due to non-payment of rent after having heard the parties, and it was satised that the Applicant was in breach of his contractual obligations of paying rent. 26. This was a clear demonstration that the Applicant is attempting to circumvent the judgment of the tribunal by ling the proceedings herein and seeking injunction orders, whereas he is still not paying the monthly rent after being Issued with interim orders of status quo. 27. According to the Learned Counsel, the Applicant had not demonstrated that it has a prima facie case with probability of success. 28. The Applicant had to demonstrate the irreparable harm it would suer if the orders sought herein was not granted and that it could not be compensated by way of damages. The Applicant had not further demonstrated and proved to the Court by documentary evidence whether it had paid any purchase price and how much to the 2nd Respondent, so that this Honourable Court could ascertain it was suered and will continue to suer any nancial loss if the orders sought are not granted. 29. The provision of Section 107 of the Evidence Act places the burden of proof on the applicant, and it had failed to prove any loss it had and would suer if the orders sought are not granted. It provides:“ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist" 30. On the balance of convenience. The Counsel referred Court to the Court of Appeal decision in the case of:- “Yellow Horse Inns Limited v Nduati Company Limited & 2 others [2017LeKLR, the Court held:“ All the three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. So that if the applicant establishes a prima facie case, that alone will not avail him an injunction. The court must further be satised that the injury the applicant will suer if an injunction is not granted will be irreparable. Therefore, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no order of injunction should normally be granted, however strong the applicant's claim may appear at that stage. If a prima facie case is not established, then irreparable injury and the balance of convenience need no consideration, and the matter ends there. Only where there is doubt as to whether a prima facie case is made out or as to the adequacy of the remedies in damages, the question of balance of convenience would arise”. 31. In conclusion, the Learned Counsel submitted that the Applicant having failed to prove the rst two requirements for the grant injunction, the application herein should be dismissed. V. Analysis and Determination 32. I have considered the Applicant’s Notice of Motion application dated 13th February 2025, the supporting adavit, the Respondents’ Replying Adavit dated 19th March 2025, the parties’ written submissions, the authorities cited, the relevant provisions of the Constitution of Kenya, 2010 and the law applicable. In order to arrive at an informed, reasonable and fair decision, the Honourable Court has crafted the following three ( 3 ) Issues for its determination: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 8

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a. Whether this Court has jurisdiction to entertain the present dispute? b. Whether the parties are entitled to the reliefs sought. c. Who will bear the Costs? Issue No. a). Whether this Court has jurisdiction to entertain the present dispute? 33. Under this Sub – title, the Honourable Court will be examining the Issue of Jurisdiction. Jurisdiction means a courts power to decide case or Issue a decree. In Kenya, the Environment and Land Court is a statutory creation by the Constitution of Kenya under the provision of Article 162 (2) (b). Here, the Courts are vested it with original and unlimited jurisdiction. From the preamble of the ELC Act, the jurisdiction of the court is dened as “……a Superior court to hear and determine disputes relating to the environment and the use and occupation of, and the titles to, land and to make provisions for its jurisdiction functions and powers and for connected purposes……” 34. Under 13 (1) of the Environment Land court Act this court has the legal mandate to hear any matter related to environment and land as follows; 13. Jurisdiction of the Court (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— (a) relating to environmental planning and protection, climate Issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land. (3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. (4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court. (5) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems t and just, including— (a) interim or permanent preservation orders including injunctions; (b) prerogative orders; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 9

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35. (c) award of damages; (d) compensation; (e) specic performance; (f) restitution; (g) declaration; or (h) costs. Further, in the now famous case of “Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited (1989) IKLR dealt with a court, jurisdiction thus:“ Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…………where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given”. 36. Additionally, still on the same point, in the case of “County Government of Migori v I N B Management IT Consultant Limited ( 2019) eKLR” whereby court being faced with an objection regarding jurisdiction, analyzed the law and observed as follows:“ 10- The jurisdiction point raised by the Respondent herein clearly meets the foregone criteria being a pure point of law. That jurisdiction is everything is a well settled principle in law. My Lordship Ibrahim, JSC in Supreme court of Kenya Civil application No 11 of 2016-“Hon (Lady ) Justice Kalpana H Rawal v Judicial Service Commission and others when in demystifying jurisdiction quoted from the decision in Supreme court of Nigeria supreme case No 11 of 2012- “Ocheja Immanuel Dangama v Hon. Atoi Aidoko Aliaswan and 4 others where Walter Samuel Nkanu Onnoghen, JSC and expressed himself as follows;“.....it is settled that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a court or tribunal without requisite jurisdiction is a nullity deed on arrival and of no legal eect whatever that is why an Issue of jurisdiction is granted and fundamental in adjudication and has to be dealt with rst and foremost......” 37. The Plainti instituted the instant suit vide a Plaint dated 6th February 2025 as follows:1. The Plainti is a male adult of sound mind living and residing in Diani and his address of service for the purposes of this suit shall be c/o Mwaniki Gitahi & Partners Advocates, NSSF Hse 7Th Floor Nkrumah Road Mombasa. 2. The 1st Defendant is a female adult of sound mind living and residing in Diani. (Summons shall be eected to the Plainti). 3. The 2nd Defendant is a female adult of sound mind living and residing in Diani. (Summons shall be eected to the Plainti). 4. At all material times to this suit, the Plainti has been the owner of the house without land erected on a portion of land known as Plot No, Kwale/ Ukunda/ 3377. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 10

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5. On or around the year 2001, Plainti entered into a lease agreement with Rama Matano Mwaurinda the deceased to build his property on a portion of the deceased's Plot No, Kwale/ Ukunda/ 3377 upon payment of the agreed consideration and a monthly ground rent of Kshs.500/=. 6. The Plainti obtained all the requisite building permits from the relevant authorities and proceeded to construct his property on the above-named Plot number. 7. That On or around October of 2004, the Plainti made an application to Kenya Power and Lightning Company for the supply of electricity on the said property an exercise that cost him Kshs.25,000/=. 8. Upon obtaining a business permit, the plainti started operating a bar and restaurant business on his property and dutifully paying ground rent of Kshs.500/= per month till date. 9. That on or around the year 2010, Rama Matano passed on hence resulting to the Defendants' appointment as administrators of his estate. 10. The Defendants have been harassing the Plainti by threatening to evict him from his property since the demise of their father. 11. The Defendants have also been interfering with the Plainti's enjoyment of his property by forcefully removing gutters on the Plainti's property and by covering the drainage system thus causing water to ood his business. 12. The Defendants led a case in the business premises and rent tribunal seeking to terminate the tenancy which matter is pending appeal. 13. Due to the frequent interference by the Defendants, the Plainti sought a valuer to conduct a valuation of his property and the portion of Plot that his property sits to determine the market price of both assets. 14. The Defendants are adamant about evicting the Plainti from his property and have refused all the proposals from the Plainti to buy the said property at the market price or sell the portion of land the property is erected on. Particulars Of Loss And Damage: a) The Plainti has been deprived of the quiet enjoyment of the suit property. b) The Defendants have forcefully removed gutters on the Plainti's property and covered the drainage system which causes water to ood his business. b) The Plainti avers that the Defendants frustrate his business by continually blocking the drainage system and removing the gutters every time he reinstalls them and unblocks the drainage system. c) The Defendants have denied the Plainti his uninterrupted and or/exclusive use of his property. 15. The Defendants threaten, harass, and intend unless restrained by this Honourable Court to evict the Plainti from the suit property and/ or continue to trespass. 16. Despite written demand and notice of intention to sue having been Issued, the Defendants have continued with their harassment and have refused/ rejected to remove their gutters on my property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 11

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17. That there is no other suit pending and there have been no previous proceedings between the parties herein in any Court involving the same subject matter. 18. The cause of action arose in Kwale within the Jurisdiction of this Honourable Court. REASONS WHEREOF: the Plainti prays for judgment against the Defendants for a) An order that the Defendants pay the Plainti the value of his house erected on plot No. Kwale/Ukunda/3377. b) In the alternative, an order allowing the Plainti to pay the Defendants the value of the portion of plot his property is erected on. c) General damages for trespass and prots on suit property as trespassers. 38. I have perused the Plaint, supporting adavit, replying adavit on record and On my own accord, do nd that there is an allegation of a relationship of tenant/Landlord between the plainti and the Defendant. The Plaint clearly discloses a tenant/landlord relationship, despite the Applicant attempting to reframe the dispute as one of encroachment and valuation. Section 12 ( 1 ) of the Landlord – Tenant (Shops, Hotels & Catering Establishments) Act, Cap. 301 – (Its Preamble – An Act of Parliament to make provision with respect the powers of the BPRT being Issues of controlled tenancy. 39. The Respondent insists, under Paragraph 7 of the Replying Adavit sworn on 19th March 2025 that in the Reference led before the Tribunal, the Applicant relied on a Lease Agreement dated 3rd February 2002 between himself and the deceased, the late Rama Matano Maurinda, whose estate she now administers jointly with the 2nd Respondent. A copy of the lease agreement was annexed and marked “FRM - 4.” and the Applicant directly admits, that there was an agreement with the Respondent for a monthly rent of a sum of Kenya Shillings Five Hundred (Kshs. 500/=) as per Paragraph 5 of the Plaint as follows; 5. 40. On or around the year 2001, Plainti entered into a lease agreement with Rama Matano Mwaurinda the deceased to build his property on a portion of the deceased's Plot No, Kwale/ Ukunda/ 3377 upon payment of the agreed consideration and a monthly ground rent of Kshs.500/=. The provision of Section 57 of the Land Act, No. 6 of 2012 provides for Periodic leases as follows:57. Periodic leases (1) If in any lease— (a) the term of the lease is not specied and no provision is made for the giving of notice to terminate the tenancy, the lease shall be deemed to be a periodic lease; (b) the term is from week to week, month to month, year to year or any other periodic basis to which the rent is payable in relation to agricultural land the periodic lease shall be for six months; (c) the lessee remains in possession of land with the consent of the lessor after the term of the lease has expired, then— (i) unless the lessor and lessee have agreed, expressly or by implication, that the continuing possession shall be for some other period, the lease shall be deemed to be a periodic one; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 12

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(ii) 41. (2) If the owner of land permits the exclusive occupation of the land or any part of it by any person at a rent but without any agreement in writing, that occupation shall be deemed to constitute a periodic tenancy. (3) The periodic tenancy contemplated in subsection (1)(a) shall be the period by reference to which the rent is payable. (4) A periodic tenancy may be terminated by either party giving notice to the other, the length of which shall be not less than the period of the tenancy and shall expire on one of the days on which rent is payable. This makes the lease for the Plainti/Applicant and the Defendant/Respondent to be a monthly periodic lease. This brings the lease to be under bringing it within Section 2(1) of Cap. 301. Such disputes are within the per view or control of the Landlord and tenant (shops, Hotels catering establishment Act Cap 301 Laws of Kenya. Section 2 of Cap 301 provides: “ 2. (1) 42. all the terms and conditions of the lease that are consistent with the provisions of subparagraph (i) shall continue in force until the lease is terminated in accordance with this section. For the purposes of this Act, except where the context otherwise requires –“controlled tenancy” means a tenancy of a shop, hotel or catering establishment which has not been reduced into writing; or which has been reduced into writing and which is for a period not exceeding ve years; or contains provision for termination, otherwise than for breach of covenant, within ve years from the commencement thereof; or(iii) relates to premises of a class specied under subsection (2) of this section: Provided that no tenancy to which the Government, the Community or a local authority is a party, whether as landlord or as tenant, shall be a controlled tenancy;……..“shop” means premises occupied wholly or mainly for the purposes of a retail or wholesale trade or business or for the purpose of rendering services for money or money’s worth; “tenancy” means a tenancy created by a lease or underlease, by an agreement for a lease or under-lease, by a tenancy agreement or by operation of law, and includes a sub-tenancy but does not include any relationship between a mortgagor and mortgagee as such; “tenancy notice” means a notice given under subsection (2) or subsection (3) of section 4 of this Act; “tenant” in relation to a tenancy means the person for the time being entitled to the tenancy whether or not he is in occupation of the holding, and includes sub-tenant;” The Plainti/Applicant admit that this lease agreement between himself and the Defendant/ Respondent was a monthly one whereby he was supposed to pay a sum of Kenya Shillings Five Hundred (Kshs. 500/=). The Defendant’s argument being that being a controlled tenant by virtue of the provision of Section 2 of the Landlord and Tenant (Shops, Hotels & Catering establishments) Act Cap. 301 the appropriate form for determination of the question of eviction of a controlled tenant is the business premises rent tribunal established by Section 11 of the said act. The powers of the tribunal are spelt out in Section 12 (e) includes to make order, upon such terms and conditions as it thinks t, for the recovery of possession. The process of terminating a controlled tenancy is also enumerated under the provision of Sections 4, 6 & 7 of the Act of which the Plaintis has not complied with. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 13

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43. It is generally true that this court has jurisdiction in matters of tenancy. But in matters of controlled tenancy, the rst port of call is not this court. Under Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, (Cap. 301), a tenancy agreement or arrangement that is not in writing is a controlled tenancy. The tenancy between the parties herein seems to be one such tenancy because no written agreement has been availed. A person with a complaint or grievance relating to or surrounding such tenancy is duty-bound to go to the tribunal set up under the Act. This court is not one such tribunal. 44. It was the wrong approach taken up by the Plaintis to come to this court rst. They should have gone to the BPRT. In the case of:- “Joseph Njuguna Mwaura & Others v Republic: CA Cr. Appeal No. 5 of 2008, Nairobi” (Yes, the matter is instructive even it is a criminal one) the Learned Judges expressed themselves as follows: “ In our understanding, Courts have no jurisdiction in matters over which other arms of government have been vested with jurisdiction to act”. 45. Further, in the Case of: ”Alice Mweru Ngai v Kenya Power & Lighting Co. Limited: ELC Case No. 287 of 2014, Kerugoya [2015] eKLR the court observed thus: “ …it would be an un-warranted intrusion into the jurisdiction of another organ if this court were to purport to handle this dispute …” “proper procedures provided for in the hierarchy of dispute resolution are to be followed and that the organs mandated to arbitrate over such dispute be respected and allowed to perform their statutory responsibilities. That is why those procedures were formulated and such organs established”. 46. It is my own view that, the position now is clear. And the position is that while this court has general jurisdiction to handle matters relating to tenancy, the rst port of call where the tenancy in question is a controlled one is a tribunal set up under The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301. 47. The Environment and Land Court only acts as an appellate court at Section 15 of the Act to hear appeals from decisions of the BPRT. Hence the Environment and Land Court is not a court of rst instance in matters dealing with controlled tenancy but purely as an appellate court. The case before this Court is not an appeal but an initial case hence this court lacks jurisdiction. 48. As it is now well established, Jurisdiction is everything, and where a court or tribunal lacks jurisdiction, it cannot proceed with the matter but down its tools. See the celebrated case of Motor Vessel M.V. Lillians (Supra) at page 10:“ The purpose of sub- judice rule is to stop the ling of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conicting decisions over the same subject matter-------When two or more cases are led between the same parties on the same subject matter before courts with jurisdiction, the matter that is led later ought to be stayed in order to await the determination to “Jurisdiction must be acquired before judgment. It is for this reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on evidence before the court. It is immaterial whether the evidence is scanty or limited…the moment the court determines that it has no jurisdiction it has to down its tools and proceed no further.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 14

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49. On the same breath, the supreme court rendered itself in the case of “Samuel Kamau Macharia & Ano. v KCB and 2 Others Supreme Court Civil Application no. 2 of 2011” that a court’s jurisdiction ows from either the constitution or legislation or both. In this case, the tenancy in question being a controlled one, the appropriate forum to ventilate any dispute ought to be the Business Premises Rent Tribunal and not this court. 50. Accordingly, is it the humble submission of the Defendant that the Court nds that it lacks statutory jurisdiction to hear this case and proceed to strike out the suit with costs to the Defendant. Issue No. b). Who bears the Costs of the application? 51. It is now well established that the Issue of costs is at the discretion of the Court. Costs mean any award that is granted to a party at the conclusion of a legal action, proceedings and/or process of any litigation. The proviso of the Section 27 (1) holds that costs follow the event. By event herein it means the results of the said legal action, proceedings and/or process. 52. In the Instant case the Notice of Motion application dated 13th February 2025 fails to succeed and therefore the 1st and 2nd Respondents are to the Costs of the application and the suit. VI. Conclusion & Disposition 53. In the long run, after conducting an in-depth analysis of the framed Issues, I agree entirely with the reasoning in the above decisions and Replying Adavit by the 1st and 2nd Respondents. They are in all fours with the instant case. As such I nd that this matter is not ripe for this Court. Based on “the Doctrine of Exhaustion”, I hold that the suit or parties can only come to this Court on appeal from the decision of the BPRT but not before. For now, it is premature. Specically, I nd and hold as follows: a. That the Notice of Motion application dated 13th February 2025 and the suit through the led Plaint dated 6th February 2025 be and is hereby struck out with costs to the 1st & 2nd Defendants. b. That costs to be awarded to the 1st & 2nd Defendants to be borne by the Plainti herein. It Is So Ordered Accordingly. RULING DELIVERED THROUGH THE MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT KWALE THIS 16TH DAY OF DECEMBER 2025. ..................................... HON. MR. JUSTICE L. L. NAIKUNI ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. Mr. Daniel Disii the Court Assistant. b. No appearance for the Plainti/Applicant. c. M/s. Washalla Advocate holding brief for Mr. Mungai Kamau for the 1st & 2nd Defendants/Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18640/eng@2025-12-16 15

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