Oloolmaitai & 2 others v Leo Investments Ltd

purported to issue a Decree dated 8th November 2024 executable before the same Tribunal in the Reference before the BPRT when they had no jurisdiction to do so, inasmuch as any determination of the Reference by the Tribunal can only be enforceable upon adoption of the decision by a competent Court, pursuant to Section 14 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act. b. The Learned Panelists of the Tribunal ignored the binding Judgement and Decree of this Honourable Narok ELC Court dated 28th July, 2022 in ELC 55 of 2018 (Samson olol Maitai & Others vs Furahia Africa Promotions Ltd) in which this Honourable ELC Court granted the Appellants permanent injunctive Orders against the Defendant therein, Furahia Africa Promotions Ltd under whom the Respondent herein (Leo Investments Ltd) purported to be a subtenant of, yet was expressly barred from the suit property by the said Decree and Order of this Court in Narok ELC 55 of 2018. c. The Learned Panelists of the Tribunal by their Judgement and Decree appealed against openly breached and violated the doctrine of stare decisis espoused in Article 163(7) of the Constitution of Kenya, in that the Decree and judgement of this Honourable ELC Court dated 28th July 2022 in Narok ELC 55 of 2018 cited to them and produced in evidence at the trial before the Tribunal was nal in respect of the Lease over Cis-mara/lemek/173 under which the Respondent herein purported to claim a non-existent tenancy. They thereby erred and acted ultra vires the said provision in the Constitution of Kenya. d. The Learned Panelists of the Tribunal in issuing their judgement and Decree herein appealed against (with respect) and ordering the Respondent herein to enter upon the Appellants’ parcel Cis-mara/lemek/173 eectively purported to act in an appellate capacity against the Decree of this Honourable ELC Court in Narok ELC No. 55 of 2018, which was a violation of Article 165(6) of the Constitution of Kenya. Such e. The Learned Panelists of the Tribunal erred in law and in fact when they found that the Respondent herein Leo Investments Ltd was allegedly a tenant of the Appellants in respect of the parcel Cis-mara/lemek/173 when no evidence of any Lease, Tenancy, Sub-Tenancy or Sub-Lease was produced by the Respondents to prove that such a tenancy ever existed, or exists between the Respondent and the Appellants, and in any event the terms thereof were never stated on oath or produced in evidence by the Respondent. f. The Learned Panelists of the Tribunal erred in law and in fact when they purported that the demand letter for rent arrears under the Distress for Rent Act, written to Furahia Africa Promotions Ltd as the Lessee of the Appellants in respect of the Appellants’ parcel Cis-mara/lemek/173 and copied to the Respondent was null and void thereby exonerating Furahia Africa Promotions Ltd the obligation to remit the Appellants’ rent arrears in a manner that was an oblique appeal against this Honourable ELC Court’s decision in Narok ELC 55 of 2018 decided on 28th July 2022. g. The Learned Panelists of the Tribunal erred in law and in fact were openly biased against the Appellants, and they irrationally favored the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 2

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when they made ndings in their Judgement appealed against without any evidence tendered by the Respondent in support of the same. h. The Learned Panelists of the Tribunal were openly biased against the Appellants and they sunk into the arena of litigation and argued the Respondent’s unsubstantiated allegations, and rendered a judgement and Decree containing pleas never requested for or pleaded by the Respondent as contained in their judgement and Decree dated 8th November 2024. i. The Learned Panelists of the Tribunal were openly biased against the Appellants as they contradicted themselves in the ndings regarding the Respondent’s purported tenancy over the Appellants’ parcel Cis-mara/ lemek/173 as contained in the Judgement appealed against, even going against their own decision in the case of Muya & 2 others v Nzyoki (Tribunal Case E747 of 2023) [2024] KEBPRT 83 (KLR) (2 February 2024) (Ruling), involving similar facts in a manner that violated Article 27(4) of the Constitution of Kenya, thereby rendering the impugned Judgement and Decree null and void. j. The Learned Panelists of the Tribunal erred in law and in fact held that whereas there was no express consent by the Appellants allowing any construction/ repairs by the Respondent to be carried on their suit property Cis-mara/ lemek/173 when such Consent must by law be expressed in writing, and none was produced before the Tribunal by the Respondent, the alleged improvements were allegedly warranted. They thereby arrived at a wrong decision in law and in fact. k. The Learned Panelists of the Tribunal erred in law and in fact when they issued a Decree for its own enforcement in furtherance of the impugned Judgement issued on 8th November 2024, in breach of Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act by reason of which the terms of enforcement of the Judgement by the Tribunal itself in the purported Decree are null and void ab initio. l. The Learned Panelists of the Tribunal erred in law and in fact when they held that the Respondent had proved its Reference before the BPRT against the Appellants, when in fact it had not done so, and there was no lawful Amended Reference led with the BPRT or served on the Appellants such as formed the purported decision appealed against. m. The Learned Panelists of the Tribunal erred in law and in fact in holding that the Appellants were landlords of the Respondent herein and yet there was no evidence of the alleged landlord-tenant relationship on the facts presented during the trial. n. The Learned Panelists of the Tribunal erred in law and in fact in ignoring the binding authorities tendered to them by the Appellants, and in totally ignoring the Appellants’ submissions that pointed to the nullity of the Respondent’s Reference ab initio. o. The Learned Panelists of the Tribunal erred in law and in fact when they held that the issue of the alleged tenancy of the Respondent over the Appellants’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 3

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parcel CIS-Mara/lemek/173 had been decided by this Honourable Narok ELC Court in Narok ELC Appeal No E07 of 2020 when in fact no such material nding of fact had been established or rendered, and the ELC Court in the said decision had only rendered itself on the Preliminary Objection by the Appellants that the Respondent having already lodged the subject Reference then the ELC Court was divested of jurisdiction (as opposed to the ELC making an actual nding on the alleged tenancy of the Respondent). They therefore erred in spurning and disregarding the weight and span of the Appellants’ evidence of the lack of a tenant-landlord relationship tabled before them at the trial. p. The Learned Panelists of the Tribunal erred in law and in fact in nding the Appellants had allegedly evicted the Respondent from the property Cis-mara/ lemek/173 when no such eviction ever took place and no evidence of such event was ever tendered at the trial. q. The Learned Panelists of the Tribunal erred in law and in fact in nding the Appellants had allegedly agreed to a rent in respect of the Appellants’ property CIS-Mara/lemek/173 of Ksh. 150,000/= without any periodic explanation thereof, and when no such evidence was tendered or proven by the Respondent. r. The Learned Panelists of the Tribunal erred in law and in fact in allowing the Respondent’s Reference led on 26th March 2020 when no positive orders were therein prayed for, as contained in the Judgement appealed against and as enumerated in the BPRT’s Decree dated 8th November 2024. The said judgement and Decree dated 8th November 2024 are a nullity in toto, and the ndings thereof ultra vires the Landlord and Tenants (Shops, hotels and catering establishment Act Cap 301 Laws of Kenya. s. The Learned Panelists of the Tribunal erred in law and in fact when they held that the Appellants had allegedly hired goons to evict the Respondent, yet in the same Judgement held that the Respondent had alleged that it shut down its business. The Tribunal thus arrived at a decision not backed by facts. t. The Learned Panelists of the Tribunal erred in law and in fact in their judgement and Decree in assessing damages in the sum of Ksh. 2,000,000/= for alleged trespass by the Appellants on their own property Cis-mara/lemek/173, when no such evidence was led or tendered by the Respondent at the trial. The said award is a nullity ab initio. u. The Learned Panelists of the Tribunal erred in law and in fact when they dealt with the Reference before them as a Complaint alternately and indiscriminately, thereby prejudicing the Appellants and arrived at an unlawful decision. v. The Learned Panelists of the Tribunal erred in law and in fact when they ordered in their Judgement and Decree appealed against a purported valuation of the properties in the Appellants’ parcel Cis-mara/lemek/173 post judgement, without considering the merits thereof and without any such invitation by the Respondent to so do, and hence arrived at a wrong decision. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 4

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4. Consequently, the Appellants pray that the Appeal be allowed and that the Judgment and Decree of the Tribunal dated 8th November 2024, be vacated and entirely set aside. Further,, the Appellants seek an order substituting the impugned Judgment and Decree with an order dismissing the Respondent’s Reference in Nakuru BPRT No. 60 of 2020, together with an order that the Respondent bears the costs of the proceedings before the Tribunal and of this Appeal. 5. The Appeal was canvassed by way of written submissions. The Appellants led their written submissions dated 26th March 2026, in which they submitted as follows: 6. The Appellants submitted that the Tribunal acted without jurisdiction in entertaining and determining the Respondent’s Reference. Their principal contention was that no Landlord-Tenant relationship existed between the parties in respect of the property known as Cis-mara/lemek/173 (hereinafter “the suit property”). They maintained that although they are the registered proprietors of the suit property, the Respondent did not produce any lease, tenancy agreement, licence or other written instrument evidencing its alleged tenancy. 7. The Appellants further submitted that the Respondent itself admitted that it had been invited onto the suit property by Furahia Africa Promotions Limited, the Appellants’ lessee, without the Appellants’ approval or any tenancy agreement between the parties. 8. The Appellants further submitted that Furahia Africa Limited had a formal lease over the suit property which was the subject of Narok ELC Case No. 55 of 2018 – Samson Ololmaitai & 2 Others v Furahia Africa Limited. They drew the Tribunal’s attention to the judgment and decree delivered in that matter on 28th July 2022, which, according to them, resulted in the eviction of Furahia Africa Limited, from the suit property and contained permanent injunctive orders restraining the Defendant therein, together with its invitees, servants, agents, licensees and/or tenants, from remaining upon or dealing with the property. 9. Furter, the Appellants submitted that the said Judgment and Decree were binding upon the Tribunal, and that, by recognizing the Respondent as a tenant, and subsequently granting it rights of access and occupation over the suit property, the Tribunal eectively purported to overturn or circumvent the decree of this Court. 10. The Appellants invoked Article 163(7) of the Constitution, and the doctrine of stare decisis, relying, inter alia, on Rift Valley Sports Club v Patrick James Ocholla, Nakuru HCCA No. 172 of 2002 [2005] eKLR and Martin Nyaga Wambora v County Assembly of Embu & 37 Others [2015] eKLR ,in support of the proposition that Courts and tribunals are bound by decisions of superior courts. 11. The Appellants further contended that the Respondent’s own pleadings before the Tribunal disclosed that it was not in possession of the suit property. They submitted that in paragraph 4 of its Complaint dated 24th March 2020, the Respondent admitted that it was not in possession, and alleged instead that it had been prevented from accessing the premises. It was their argument that the Respondent could not establish the existence of a Controlled tenancy merely by asserting that it had been denied access to the property. 12. In that regard, the Appellants relied on Nashridas & Company Limited v Nyali Air Conditioning and Refrigeration Services Limited, Civil Appeal No. 205 of 1995, and Tiwi Beach Hotel Ltd v Julian Ulrike Stamm for the proposition that the jurisdiction of the Business Premises Rent Tribunal is conned to matters falling within the scope of a controlled tenancy. 13. Further, they relied on Republic v Business Premises Rent Tribunal ex parte Karasha [1979] KLR 147 and Re Hebatulla Properties Ltd [1979] KLR 96, for the proposition that the Tribunal could https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 5

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not assume jurisdiction over matters which were properly within the province of the ordinary courts, including claims founded on trespass where no controlled tenancy existed. 14. The Appellants also challenged the legality of the decree issued by the Tribunal. They contended that the Tribunal purported to issue a decree capable of being executed by itself, contrary to Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. Reliance was placed on Olkejuado Teachers Credit & Savings Society Ltd v Chairman of the Co-operative Tribunal Nairobi [2005] eKLR, for the principle that a court or tribunal cannot confer jurisdiction upon itself where none exists. It was their submissions that the Tribunal’s purported self-executing decree was a nullity. 15. The Appellants maintained that the Respondent had no valid cause of action before the Tribunal because it had failed to produce evidence of the alleged tenancy. Further, that there was no written agreement between the parties, no termination clause that had been invoked, and no evidence demonstrating the terms of the alleged oral tenancy. They argued that, in the absence of a controlled tenancy, the Tribunal ought to have declined jurisdiction at the outset, rather than proceed to determine the merits of the Reference. 16. The Appellants further took issue with the Tribunal’s nding that a monthly rent of Kshs. 150,000/= had been agreed between the parties. They argued that no evidence had been produced to establish such agreement or the periodicity of the alleged rent. Further, that the Tribunal had improperly inferred a tenancy from the Respondent’s occupation of the premises notwithstanding the absence of the Appellants’ consent. 17. On the question of subletting and consent, the Appellants submitted that they had never given written consent to the Respondent to enter or occupy the suit property. They relied on New Calabash Limited v Joseph Odero [2018] eKLR, and argued that where a tenancy agreement requires the lessor’s written consent to a sub-tenancy, such consent cannot simply be presumed. 18. The Appellants also maintained that Furahia Africa Promotions Limited remained their lessee, and that the Respondent could not, without their consent, acquire rights against them merely by virtue of an arrangement with the lessee. 19. The Appellants further submitted that the Tribunal had contradicted its own previous decision in Muya & 2 Others v Nzyoki, Tribunal Case No. E747 of 2023 [2024] KEBPRT 83 (KLR), in which, according to the Appellants, the same Tribunal had taken a dierent position concerning a similar issue. They contended that the inconsistency demonstrated that the impugned decision was erroneous and unsupported by the applicable law. 20. The Appellants challenged the Tribunal’s treatment of the proceedings as both a Reference and a Complaint. They submitted that the distinction was material because a party to a Reference has a statutory right of appeal under Section 15 of Cap. 301, whereas a mere complainant does not enjoy the same right. They relied on Re-Heptulla Properties Ltd [1979] eKLR and Mike Muli v Justus Mwandikwa Kilonzo & 4 Others [2022] eKLR in support of their submissions on the distinction. 21. The Appellants further submitted that the Tribunal had exceeded its jurisdiction by granting orders which, in their view, went beyond the reliefs properly available under the Act. They particularly challenged the order permitting the Respondent access to the suit property, contending that such an order was inconsistent with the decree issued by this Court in Narok ELC Case No. 55 of 2018. They argued that the Tribunal, being a subordinate tribunal, could not issue orders that had the eect of varying, defeating or circumventing orders of this Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 6

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22. The Appellants also relied on Gatanga General Store & 2 Others v Githere [1988] eKLR ,for the proposition that the powers conferred upon the Tribunal under Section 12(4) of Cap. 301 must be exercised within the statutory framework governing controlled tenancies. Further, that the Tribunal could not employ the general language of “complaint” in Section 12(4) to assume jurisdiction over a dispute which did not concern a controlled tenancy. 23. The Appellants further relied on the decision in G.H. Tanna & Sons Holding Limited & Another v Gathubuye, Environment and Land Appeal No. 6 of 2022 [2022] KEELCC 3155 (KLR), where the Court considered the eect of proceedings before the Tribunal during the pendency of an appeal. That the circumstances of the present appeal similarly demonstrated the need for the Court to intervene and set aside the impugned orders. Reliance was sought on Banco Arabe v Bank of Uganda [1999] 1 EA 22 ,for the broader principle that disputes ought, as far as possible, to be determined on their merits. 24. In conclusion, the Appellants submitted that the Respondent had failed to establish any legal basis upon which it could claim a tenancy over the suit property. Further, that the Respondent had never been a tenant of the Appellants and that the Tribunal had, in eect, created a tenancy where none existed. 25. The Appellants urged the Court to allow the Appeal, set aside the Judgment and Decree of the Tribunal dated 8th November 2024, and substitute the same with an order dismissing Nakuru BPRT Case No. 60 of 2020, together with costs. 26. The Respondent opposed the Appeal vide submissions dated 18th May 2026, and urged the Court to dismiss the same in its entirety. Its submissions were premised on the position that the Judgment and Decree of the Business Premises Rent Tribunal in Nakuru BPRT Case No. 60 of 2020, were well founded both in fact and in law. 27. The Respondent identied ve broad issues for determination. Firstly , whether the Appellants were estopped from challenging the jurisdiction of the Tribunal, having previously asserted before the Environment and Land Court in Narok ELC No. 7 of 2020, that the dispute fell within the exclusive jurisdiction of the Business Premises Rent Tribunal. 28. Secondly, whether the oral tenancy between the parties constituted a controlled tenancy within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, notwithstanding the absence of a written lease. 29. Thirdly, whether the Appellants’ handwritten demand for Kshs. 2,000,000/= or vacant possession constituted a valid notice of termination. 30. Fourthly, whether the Tribunal acted within its statutory mandate in awarding Kshs. 2,000,000/= as general damages for the Respondent’s illegal eviction, harassment and trespass. Finally, whether the Tribunal had jurisdiction to issue a preliminary decree for valuation of the Respondent’s improvements and movable property and to enforce its orders under Section 14 of Cap. 301. 31. On the question of jurisdiction, the Respondent submitted that the Appellants were estopped from re-litigating the jurisdiction of the Tribunal. It pointed out that the dispute had initially been instituted before the Environment and Land Court at Narok in ELC No. 7 of 2020. The Appellants had, by a Preliminary Objection dated 4th March 2020, expressly contended that the dispute arose from a landlord and tenant relationship, and that the proper forum was the Business Premises Rent Tribunal. 32. The Respondent further submitted that, following the said objection, the Environment and Land Court in Narok, in a ruling delivered on 13th March 2020, accepted the Appellants’ position that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 7

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suit was premised on a landlord and tenant relationship, found that the Court lacked jurisdiction, and directed the Respondent to le a Reference before the Tribunal. The Respondent thereafter complied with that order, and led the Reference before the Tribunal on 24th March 2020. 33. It was further submitted that when the Tribunal subsequently made orders in favour of the Respondent, the Appellants again challenged its jurisdiction by an application dated 30th March 2021. That application was dismissed by the Tribunal on 14th July 2021. The Appellants appealed against that decision in Narok ELC Appeal No. 8 of 2021, which Appeal was dismissed with costs to the Respondent vide a ruling delivered on 31st January 2022. 34. On that basis, the Respondent submitted that the Appellants could not approbate and reprobate by rst asserting that the dispute fell within the jurisdiction of the Tribunal, and thereafter upon receiving an adverse determination, contended that the Tribunal lacked jurisdiction. 35. Reliance was sought in the John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] eKLR, where the Court of Appeal discussed the doctrine of issue estoppel, and on the case of Railway Landing Services Ltd v Cooperative Bank of Kenya Ltd [2017] eKLR, for the proposition that a party who voluntarily submits to a forum’s jurisdiction and takes chances on the merits cannot subsequently challenge that jurisdiction. 36. The Respondent consequently maintained that the issue of the Tribunal’s jurisdiction had already been determined in the earlier proceedings, and could not properly be reopened in the present appeal. 37. On the existence of a controlled tenancy, the Respondent submitted that Section 2 of Cap. 301 expressly recognizes an oral tenancy. It was argued that the statutory denition of a “controlled tenancy” includes a tenancy of a shop, hotel or catering establishment which has not been reduced into writing. The absence of a written lease was therefore not fatal to the Respondent’s case. 38. The Respondent relied on the evidence placed before the Tribunal, including the Adavit of its Director, Rahim Chatur, who deposed that in June 2016, the parties entered into an oral agreement under which the Respondent took over the Mara Wild Beast Lodge at a monthly rent of Kshs. 150,000/ =, to be shared equally between the 1st and 2nd Appellants. It was submitted that the Respondent was also permitted to undertake substantial renovations to the premises. 39. The Respondent further relied on cheques and payment receipts demonstrating regular payment of rent directly to the Appellants over several years, which payments were accepted without objection. It also referred to photographic evidence showing substantial improvements to the premises, including construction of a swimming pool, upgrading of sta quarters, provision of beds for approximately fty rooms, installation of a power generator, electric fencing and a gymnasium, at a cost exceeding Kshs. 40 million. 40. The Respondent further submitted that the Appellants’ own conduct was inconsistent with their subsequent assertion that no tenancy existed. In particular, the Appellants had caused auctioneers to issue a proclamation notice claiming rent arrears of Kshs. 14,921,706/=. The Respondent also argued that distress for rent was a remedy available against a tenant and that, by invoking that remedy, the Appellants themselves treated the Respondent as their tenant. 41. The Respondent also relied on the Appellants’ handwritten demand for Kshs. 2,000,000/= as backdated rent or vacation of the premises, arguing that the notice itself acknowledged the existence of the tenancy. 42. Further, that the Appellants were estopped from denying the tenancy after permitting the Respondent to remain in occupation for several years, accepting rent, permitting it to operate the business, changing https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 8

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the name of the lodge from “Mara Wild Beast Lodge” to “Mara Concord Game Lodge” and allowing the Respondent to invest more than Kshs. 40 million in improvements without objection. 43. The Respondent relied on Section 120 of the Evidence Act, Cap. 80, and the decision in Titus Muiruri Doge v Kenya Canners Ltd [1980] eKLR, for the proposition that where a person is permitted to remain in occupation, and pays rent which is accepted, a tenancy by conduct may arise and the person accepting rent may subsequently be estopped from denying the tenancy. 44. With regard to the judgment in Narok ELC No. 55 of 2018, the Respondent submitted that the Appellants’ reliance on that decision was misplaced. The Respondent contended that it was not a party to those proceedings, and that the judgment, which concerned a lease between the Appellants and Furahia Africa Ltd, could not bind the Respondent. It was argued that the Respondent’s tenancy arose independently, and directly between itself and the Appellants, and was not an assignment or sublease from Furahia Africa Ltd. 45. On the validity of the notice of termination, the Respondent submitted that Section 4(2) of Cap. 301, read together with Regulation 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Forms and Procedure) Regulations, 1966, required a landlord seeking to terminate a controlled tenancy to issue the prescribed statutory notice. The Respondent argued that compliance with the prescribed form was mandatory and constituted a condition precedent to valid termination. 46. The Respondent contended that the Appellants’ notice was an undated handwritten demand for Kshs. 2,000,000/= in alleged backdated rent, failing which the Respondent would vacate the premises. The notice was not in the prescribed Form A and was therefore incapable of terminating the controlled tenancy. 47. Reliance was placed on Manaver N. Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 [1995] eKLR, where the Court of Appeal held that noncompliance with the prescribed statutory form renders a notice incapable of terminating a controlled tenancy. 48. The Respondent further submitted that the demand for backdated rent from 2016 to October 2019, did not constitute a lawful alteration of the terms of the tenancy under Section 4(2) of Cap. 301, and that there was no statutory basis for the retrospective demand. 49. On the award of damages, the Respondent submitted that the evidence before the Tribunal established that the Appellants had unlawfully interfered with its possession and business. It was contended that, on or about 31st January 2020, the Appellants caused armed individuals to invade the Respondent’s lodge, expel its employees and close down the business. The Appellants subsequently instructed auctioneers to levy distress for alleged rent arrears without a lawful basis. 50. The Respondent maintained that it had neither received a valid notice to vacate nor was there any court order authorizing its eviction. The conduct complained of consequently amounted to trespass, unlawful eviction and interference with the Respondent’s business. 51. The Respondent relied on Section 12(4) of Cap. 301, and submitted that the Tribunal had jurisdiction to investigate complaints relating to a controlled tenancy, and to make such orders as it deemed t. It further relied on Gatanga General Store v Githere [1988] eKLR, for the proposition that the Tribunal’s jurisdiction extends to complaints concerning harassment, obstruction and illegal eviction. 52. The Respondent defended the award of Kshs. 2,000,000/= as general damages, describing the amount as modest when considered against the losses allegedly occasioned by the Appellants’ conduct, including the forced closure of the business during peak season, refund of advance client reservations, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 9

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loss or destruction of movable property, and the eective sterilization of investments exceeding Kshs. 40 million in improvements. 53. Finally, on the Tribunal’s preliminary decree, the Respondent submitted that Section 14 of Cap. 301 expressly provides that an order made by the Tribunal may be enforced by the Tribunal in the same manner as an order of the Magistrates’ Court. Further, the Appellants’ argument that the Tribunal lacked enforcement powers was without statutory foundation. 54. The Respondent maintained that the preliminary decree merely set in motion the process of quantifying the Respondent’s proprietary losses through valuation of movable property, and immovable improvements, including the swimming pool, electric fencing, generator and gymnasium. It submitted that the Appellants retained the opportunity to participate in the valuation process, and to be heard before a nal decree was issued. 55. In the premises, the Respondent urged the Court to dismiss the instant Appeal in its entirety, arm the Judgment and Decree of the Business Premises Rent Tribunal in Nakuru BPRT Case No. 60 of 2020 delivered on 8th November 2024, and award the costs of the appeal to the Respondent. 56. The court has carefully read and considered the Memorandum of Appeal, the record of proceedings before the Tribunal, the Judgment and Decree appealed gainst, the parties’ respective written submissions, and the authorities cited therein. The court has also considered the issues that arise for determination, and renders itself as follows; 57. As a rst appellate court, this Court is under a duty to reconsider and re-evaluate the evidence placed before the Tribunal, and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. 58. The appeal herein raises, in substance, ve questions for determination, namely: i. Whether the Appellants are entitled to challenge the jurisdiction of the Tribunal; ii. Whether there existed a controlled tenancy between the parties; iii. Whether the notice relied upon by the Appellants was valid; iv. Whether the Tribunal had jurisdiction to award the Respondent damages; and v. Whether the Tribunal acted within its powers in issuing the preliminary decree and providing for enforcement of its orders. 59. The court will consider each issue sequentially. On whether the Appellants are precluded from challenging the Tribunal’s jurisdiction, the court nds and holds as follows; 60. The question of jurisdiction is ordinarily fundamental. A tribunal or court can only exercise jurisdiction conferred upon it by law. However, the peculiar circumstances of the present Appeal cannot be ignored. The proceedings before the Tribunal did not arise in a vacuum. The Respondent had initially instituted proceedings before this Court being Narok ELC No. 7 of 2020. The Appellants themselves raised a Preliminary Objection contending that the dispute arose from a landlord-tenant relationship, and that the appropriate forum was the Business Premises Rent Tribunal. 61. The Court, by its ruling delivered on 13th March 2020, accepted that position, and held that the suit was premised upon a landlord-tenant relationship, and that the Environment and Land Court lacked https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 10

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jurisdiction. The Respondent was consequently directed to pursue the dispute before the Tribunal. The Respondent complied and led the Reference before the Tribunal on 24th March 2020. 62. The signicance of that history is not merely procedural. The very jurisdiction which the Appellants now challenge was the jurisdiction which they themselves invoked as the proper jurisdiction for determination of the dispute. They successfully persuaded the Court that the dispute fell within the statutory mandate of the Tribunal and, upon the Reference being led, participated in the proceedings before that Tribunal. 63. More importantly, the Appellants subsequently sought to challenge the Tribunal’s jurisdiction by an application dated 30th March 2021. The Tribunal dismissed that application on 14th July 2021. The Appellants appealed against that decision in Narok ELC Appeal No. 8 of 2021. By a ruling delivered on 31st January 2022, the Appeal was dismissed with costs. 64. It follows that the question whether the dispute was properly before the Tribunal was not left at large. It was raised, considered and determined in earlier proceedings between the same parties. The Appellants cannot now seek to re-open the same question merely because the nal determination of the Reference did not accord with their expectations. 65. The principle of issue estoppel is concerned with precisely such a situation. In John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR, the Court of Appeal recognized that the issue of estoppel applies where a party seeks to raise in subsequent proceedings an issue which has already been determined by a competent court in earlier proceedings between the same parties. 66. The same principle is underpinned by the broader rule that a litigant cannot approbate and reprobate in the same proceedings. Having successfully asserted before the ELC that the dispute was one between a landlord and tenant, and that the Tribunal was the proper forum, the Appellants cannot, after participating in the Tribunal proceedings and unsuccessfully challenging its jurisdiction, reverse their position and contend that the Tribunal had no jurisdiction at all. 67. Therefore, this court is not persuaded by the Appellants’ contention that the Tribunal lacked jurisdiction. The earlier decisions of this Court are material to the determination of that question. The Appellants were bound by those decisions, and cannot use the present appeal as a means of obtaining a second determination on an issue which had already been conclusively addressed. 68. Consequently, the court nds and holds that the Appellants are precluded from re-litigating the question of the Tribunal’s jurisdiction in this appeal. 69. The next question is whether the evidence before the Tribunal established a tenancy falling within the protection of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. Section 2 of the Act denes a controlled tenancy, among other things, as a tenancy of a shop, hotel or catering establishment, which has not been reduced into writing. The absence of a written lease is therefore not, of itself, fatal to a claim of controlled tenancy. Indeed, the statute expressly contemplates an oral tenancy. 70. The Respondent’s case before the Tribunal was that in June 2016, the parties entered into an oral arrangement pursuant to which the Respondent took over the premises known as Mara Wild Beast Lodge, subsequently operated as Mara Concord Game Lodge, at an agreed monthly rent of Kshs.150,000/=, payable to the Appellants, with the Appellants consenting to the Respondent undertaking substantial improvements to the premises. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 11

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71. That assertion was supported by evidence of payment and acceptance of rent over a considerable period. The Respondent also placed before the Tribunal evidence of substantial improvements undertaken upon the premises, including construction of a swimming pool, upgrading of sta quarters, provision of beds for the rooms, installation of a power generator, electric fencing and a gymnasium. The evidence placed the value of the improvements at over Kshs.40 million. 72. The evidence was not merely documentary. The Appellants’ own principal witness, Samson Oloomaitai, conceded that the Respondent had taken possession of the premises and was carrying on business thereon. The principal objection advanced by the Appellants was that there was no written lease, and that an earlier lease between the Appellants and Furahia Africa Limited had not been formally surrendered. 73. Therefore, the defence does not withstand scrutiny. The existence of a written lease was not a statutory prerequisite to the creation of the tenancy in question. What was material was whether the Respondent was in occupation of the premises as a tenant and whether the tenancy fell within the statutory denition of a controlled tenancy. 74. The conduct of the parties herein is particularly telling. The Respondent took possession of the premises, operated a business thereon and paid rent to the Appellants. The Appellants accepted those payments, and permitted the Respondent to remain in possession and to undertake substantial improvements over a period of years. They did not, during that period, treat the Respondent as a trespasser. 75. The Appellants cannot, in those circumstances, rely solely upon the absence of a written lease to retrospectively characterize the Respondent's occupation as that of a trespasser. Their conduct was consistent with, and objectively demonstrated, the existence of a landlord-tenant relationship. 76. This position is reinforced by section 120 of the Evidence Act, Cap. 80, which embodies the principle of estoppel. Where a person has, by declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, that person cannot subsequently deny the truth of that thing in proceedings between them. 77. The principle was aptly applied in Titus Muiruri Doge v Kenya Canners Ltd [1980] eKLR, where the Court recognized that where a person is permitted to remain in occupation and pays rent which is accepted, a tenancy may arise by conduct and the person accepting rent may thereafter be estopped from denying the tenancy. 78. In the present case, the Appellants not only permitted occupation; they accepted rent and allowed the Respondent to invest substantial sums in improving the premises. They also subsequently caused a proclamation for rent arrears to issue against the Respondent. That conduct is wholly inconsistent with the assertion that the Respondent was a trespasser with no tenancy whatsoever. 79. Consequently, the court holds and nds that on the evidence, there existed a tenancy between the parties, and that the tenancy was a controlled tenancy within the meaning of section 2 of Cap. 301. 80. Having found that a controlled tenancy existed, the next question is whether the Appellants lawfully terminated it. 81. Section 4(2) of Cap. 301 provides the statutory mechanism through which a landlord may terminate or otherwise alter the terms of a controlled tenancy. The landlord is required to give notice in the prescribed form, and in accordance with the statutory requirements. Regulation 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) Regulations, 1966 prescribes the form of notice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 12

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82. The evidence before the Tribunal was that the Appellants issued an undated handwritten demand requiring payment of Kshs.2,000,000/= allegedly representing backdated rent and threatening vacation of the premises. The Tribunal found that the document did not constitute a proper notice in the prescribed form. 83. Given that a notice to terminate is supposed to be given in a prescribed form as stipulated in Regulation 4 of CAP 301, this court accordingly concurs with that nding of the BPRT. 84. The requirement for a prescribed notice is not a mere technicality. It aords the tenant certainty as to the landlord's intention, the grounds upon which termination is sought, and the period within which the tenant is required to respond or vacate. A landlord seeking to terminate a controlled tenancy must comply with the statutory procedure. 85. In Manaver N. Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 [1995] eKLR, the Court of Appeal emphasized the mandatory nature of the statutory notice requirements, and held that a notice which does not comply with the prescribed form cannot validly terminate a controlled tenancy. 86. The document relied upon by the Appellants did not satisfy those requirements. It was undated, handwritten and did not constitute the prescribed statutory notice. Therefore, the said document could not lawfully terminate the Respondent's controlled tenancy. 87. Further, the court nds no statutory basis upon which the Appellants could retrospectively impose an alleged rent increment dating back to 2016, through such a demand. The purported demand for Kshs.2,000,000/= could not, by itself, convert an otherwise invalid notice into a lawful termination notice. 88. Therefore, this court nds and holds that the Tribunal was correct in nding that the Respondent’s tenancy had not been lawfully terminated. 89. The Appellants further challenge the award of Kshs.2,000,000/= as General damages, and contended that the Tribunal exceeded its statutory mandate. 90. Section 12(4) of Cap. 301 gives the Tribunal jurisdiction to investigate complaints relating to controlled tenancies and to make such orders as it considers appropriate. Section 12(1)(i) further empowers the Tribunal to award compensation for loss or damage incurred by a tenant in respect of goodwill and improvements carried out with the landlord's consent. 91. The Tribunal’s jurisdiction must therefore be understood in the context of the protective purpose of the Act. It is not conned to the bare determination of whether a notice to terminate is valid. Where a tenant complains of unlawful interference with its tenancy, harassment, obstruction or unlawful eviction, the Tribunal is empowered to inquire into the complaint and grant appropriate relief within the statutory framework. 92. The evidence before the Tribunal established that the Respondent’s business was interfered with and that its occupation was disrupted without a valid statutory notice or a lawful order authorizing eviction. The Tribunal found that the Appellants’ conduct had eectively paralyzed the Respondent’s business. 93. That nding was a nding of fact based upon the evidence presented before the Tribunal. The court has not been shown any basis upon which this Court should interfere with the said holding of the Tribunal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 13

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94. The Court of Appeal in Gatanga General Store v Githere [1988] eKLR, recognized the Tribunal’s jurisdiction to deal with complaints arising from the interference with a controlled tenancy and to make appropriate orders. The Appellants' contention that the Tribunal was wholly devoid of jurisdiction to grant relief arising from unlawful interference with the tenancy is therefore untenable. 95. As regards the quantum of Kshs.2,000,000/=, the Appellants have not demonstrated that the Tribunal proceeded on an erroneous principle of law, took into account irrelevant considerations or arrived at an award so inordinately high as to constitute an entirely erroneous estimate. 96. The award must be viewed against the circumstances established before the Tribunal, including the disruption of the Respondent's business, the circumstances of its eviction, the substantial investment it had made in the premises and the consequences of the Appellants’ conduct. 97. For the above reasons, the court nds no sucient basis for interfering with the Tribunal's award of Kshs.2,000,000/=. 98. The nal issue concerns the Tribunal’s order directing the valuation of the Respondent's movable property, and improvements and providing for a subsequent determination of the amount payable. The Appellants contend that the Tribunal had no jurisdiction to issue what they describe as a preliminary decree. This court does not agree with this contention. 99. Section 14 of Cap. 301 expressly provides that an order made by the Tribunal may be enforced by the Tribunal in the same manner as an order of a Magistrates’ Court. The statute therefore does not leave the Tribunal's orders without an enforcement mechanism. 100. The Tribunal’s order directing valuation was, in substance, intended to facilitate the quantication of the Respondent’s proprietary loss and improvements. The said order did not purport to nally quantify an amount which had not yet been ascertained. The Tribunal instead directed that the relevant property and improvements be valued before a nal determination was made. 101. The distinction between a preliminary and nal decree was recognized in Weston Gitonga & 10 Others v Peter Rugu Gitonga & Another [2007] eKLR, where the Court of Appeal explained that a decree is preliminary where further proceedings remain necessary before the suit can be completely disposed of, and nal where the adjudication completely disposes of the suit. 102. In the circumstances of this case, the Tribunal’s direction for valuation was not, without more, an unlawful assumption of jurisdiction. It was a procedural step directed at quantifying the relief arising from the Respondent's improvements, and movable property. 103. Further, the court notes that the Appellants have not demonstrated what prejudice they suered by the issuance of the preliminary decree. The valuation process aorded the parties an opportunity to participate and to contest the value attributed to the relevant property before a nal determination was to be made. 104. Therefore, this court nds and holds that the Appellants’ challenge to the Tribunal’s power to issue the preliminary decree and enforce its orders has no merit. 105. Having reconsidered, re-evaluated and re-analyzed the available evidence as contained in the record of Appeal, and the relevant provisions of law, this court in its appellate jurisdiction nds and holds that the Tribunal correctly determined that there existed a controlled tenancy between the parties; that the Appellants had not lawfully terminated that tenancy; that the Respondent was unlawfully evicted and/ or its business unlawfully interfered with; and that the Tribunal had jurisdiction to grant the reliefs issued in the impugned Judgment and Decree. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 14

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106. The Appellants’ challenge to jurisdiction is further defeated by the history of the proceedings. They were the parties who initially invited the Environment and Land Court to nd that the dispute was one falling within the jurisdiction of the Tribunal. Having obtained that order, participated in the Tribunal proceedings and unsuccessfully challenged its jurisdiction in the subsequent appeal, they cannot properly reopen the same question in the present appeal. 107. In the result, this court nds and holds that none of the twenty-two grounds of appeal has disclosed a sucient basis for interference with the Tribunal's Judgment and Decree delivered on 8th November 2024. 108. Accordingly, this appeal is found to be without merit, and should be and is hereby dismissed entirely. 109. As regards costs, the general principle under section 27 of the Civil Procedure Act is that costs follow the event, unless the Court, for good reasons, orders otherwise. The court herein nds no circumstances in the present matter that would justify departing from that principle. The Respondent, having successfully defended the appeal, is entitled to the costs thereof. 110. Consequently, having evaluated the Memo of Appeal, the Record of Appeal, the rival written submission and the relevant provisions of law, the court nds and holds as follows; a. The Appellants’ Appeal is found not merited, and is hereby dismissed in its entirety. b. The Judgment and Decree of the Business Premises Rent Tribunal at Nakuru in BPRT Case No. 60 of 2020 delivered on 8th November 2024 are hereby upheld and armed. c. The Respondent is entitled to costs of this appeal. It is so ordered. DATED, SIGNED AND DELIVERED THIS 17TH DAY OF SEPTEMBER, 2026. L. GACHERU JUDGE Delivered in the presence of: Elijah Meyoki.. Court Assistant Mr Harrison Kinyanjui for the 1st, 2nd and 3rd Appellants. Ms Nyariki holding brief for Ms Nyongesa for the respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5440/eng@2026-09-17 15

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