Madangi v Githua

sections 4(2), 4 (4) and 7 (1) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Cap. 301. b) That the Tribunal erred in law and fact in invoking its power under Section 12 (1) (b) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Cap. 301 when it was bereft of jurisdiction and in ordering retrospective payment of the rent as increased. c) That the Tribunal erred in law and fact in failing to have regard to all the circumstances before approving the rent increment. 3. Consequently, the Appellant sought the following orders; i. This Appeal herein to be allowed. ii. The decision of the Tribunal in so far as it ordered the rent to be increased from Kshs. 1,500 to Kshs. 10, 000 monthly effective the 1st November, 2024 be set aside. iii. That an order allowing the Appellant’s reference in its entirety with costs. iv. The Appellant also prays for costs of the appeal. 4. A brief background of the dispute herein to contextualize the appeal is that the Respondent herein as Landlord did issue ELCA NO. E002 OF 2025 JUDGMENT Page 2

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Form A (R.4) which is a Landlord’s Notice to Terminate or Alter Terms of Tenancy before the Business Premises Rent Tribunal herein dated 15th February, 2024, on the following grounds; a) Non-payment of rent arrears amounting to Kshs.8,500/b) Non- compliance with the tenancy agreement. c) To clear rent arrears d) To pay rent and vacate the premises forthwith. 5. The Appellant herein upon receipt of the said Notice did file a reference before the Business Premise Rent Tribunal dated 12.03.2024 opposing the said notice of termination issued by the Respondent. 6. The Appellant’s reference was opposed. The Respondent/landlady filed a Response to the Reference dated 15th May, 2024 herein. 7. In the said Response, the Respondent herein averred that the said Appellant has been paying rent of Kshs. 1,500/- since the year 2006. 8. The Respondent further averred that on 14.12. 2023 she served the Appellant with a notice of review of the rent upwards to be commensurate with other tenants within her premise and with other landlords within KIHUGA SQUARE, which increment was to commence as from 01.02. 2024. 9. In addition, the Respondent did state that the Appellant did not comply with the termination notice and filed a reference before the Honourable Court. ELCA NO. E002 OF 2025 JUDGMENT Page 3

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10. It was the Respondent’s claim that the Appellant since filing of the reference before the Honourable Court has failed to pay rent for the month of April and May 2024. 11. She averred that the Appellant was a difficult tenant who was taking advantage of her as a widow. 12. She further averred that she needed the protection of the tribunal to evict the tenant from her premises since her other tenant is paying rent of Kshs. 10,000/- per month and the tribunal was invited to visit the said premises and conduct a survey of the rent payable within KIHUGA SQUARE and it would find that Kshs. 10,000/ is within the normal range. 13. Upon service of the said Response by the Respondent, the Appellant did file a Replying affidavit dated 12.05. 2024 with attached annextures for reference. 14. In the said Affidavit, the Appellant deponed that when the Landlady served him with the Landlord’s notice to terminate or alter terms of tenancy dated 15. 02. 2024 filed on the even date, he immediately responded by filing a Reference by tenant to Tribunal dated 12.03. 2024 which was filed on even date. 15. In addition, the Appellant issued the Respondent with a letter dated 07.03. 2024 where he responded to the said notice. 16. The Appellant stated that he indicated that he was not willing to comply with the said notice. ELCA NO. E002 OF 2025 JUDGMENT Page 4

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17. The Appellant further stated that the said notice by the landlady indicated that he was in rent arrears. 18. The Appellant did state that he was not in any arrears and he had fully paid his rent for the month of August and he was up to date. 19. The Appellant did claim that his MPESA statement for the last 2 years form part of the Honourable Tribunal record and if he is given an opportunity for the statement, he would supply them to the Tribunal. 20. The Appellant did file a further Affidavit dated 26.09. 2024 where he deponed that he was served with a notice for nonpayment of rent dated 15.02.2024. 21. In the said Affidavit he did state that he referred the matter to the Honourable Tribunal under Section 6 of the Landlord and Tenant Act (cap 301) on 12.03. 2024. 22. In addition, the Appellant averred that the Respondent had failed to prove her notice showing the non-payment of the rent. 23. The Appellant did request the Honourable Tribunal to ask the Respondent to produce a tenancy agreement as indicated in her notice. 24. The Appellant did state that there was no written tenancy agreement with the Respondent as alleged. ELCA NO. E002 OF 2025 JUDGMENT Page 5

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25. It was the Appellant’s claim that the Respondent’s intention to produce one of the co-tenants to be her witness in the said matter was illegal as far as the Landlord and Tenant Act cap 301 was concerned as the said witness was an interested party in the matter. 26. Lastly, the Appellant did aver that the Respondent could only give notice that she, herself intended to carry on a business on the premises but not to give another tenant. 27. It was the Respondent’s claim that the Appellant since filing of the reference before the Honourable Court, the Appellant had failed to pay rent for the month of April and May 2024. 28. She averred that the Appellant was a difficult tenant who was taking advantage of the Respondent as a widow. 29. Upon close of pleadings, the matter was set down for hearing of the Reference on 17.09. 2024. 30. The Appellant testified as TW1 and thereafter his case was closed. 31. The Respondent’s case proceeded for hearing on the even date wherein the Respondent testified as LLW1 and called one more witness to testify in support of her case. She thereafter closed her case. ELCA NO. E002 OF 2025 JUDGMENT Page 6

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32. Upon close of the defence, the parties relied on their oral submissions. Consequently, the suit was determined vide the judgment issued on the 14. 11. 2024. The Tribunal went on to hold that the Appellant shall pay rent for the demised premises at Kshs. 10,000/- per month effective the 01.11.2024 hence the Appeal herein. 33. The Appeal was admitted for hearing on 27.10. 2025 and the court issued directions on the disposal of the appeal by way of written submissions. The appellant filed his submissions dated 23. 02.2026 while the respondent filed her submissions dated 19.03. 2026, which I have read and considered. Analysis and Determination: 34. This court’s jurisdiction as a first appellate court is to reappraise the evidence or issues which were before the trial court and make its own conclusion. This mandate does not however entail taking on board new issues which were never brought to the trial court’s attention or matters that were not subject of the trial court’s consideration or tribunal as in the instant case. See the Court of Appeal decision in Ol Pejeta Ranching Limited vs David Wanjau Muhoro [2017] eKLR. 35. In case of Mbogo & Another vs Shah [1968] EA, p.15 the court held as follows; “An appellate court will not interfere with the exercise of the trial court’s ELCA NO. E002 OF 2025 JUDGMENT Page 7

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discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.” 36. I have carefully considered the reference before the Tribunal, the evidence tendered before it, the judgment of the Tribunal, the grounds of Appeal in this Appeal and the rival submissions filed in respect of this Appeal. I have also considered the relevant statutes and jurisprudence on the key issues in this Appeal. 37. I will proceed to determine the appeal on account of the following issues:A. Whether the Tribunal had the jurisdiction to determine and vary the rent payable notwithstanding its finding that the notices issued by the Respondent were unlawful; B. Whether the Tribunal erred in ordering the payment of rent at Kshs.10,000/= per month with effect from 1st November 2024; ELCA NO. E002 OF 2025 JUDGMENT Page 8

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C. Whether the Tribunal failed to have regard to all the circumstances of the controlled tenancy in determining the rent payable; and D. Whether the Appeal is merited. E. Who should bear the costs of the present appeal 38. Having identified the above issues for determination, I will proceed to discuss the same hereunder. A. Whether the Tribunal had the jurisdiction to determine and vary the rent payable notwithstanding its finding that the notices issued by the Respondent were unlawful; 39. On the first issue for determination, the Business Premises Rent Tribunal (BPRT) is a quasi-judicial body established under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301). This means it has some judicial powers to resolve disputes related to controlled tenancies. 40. In addition, Section 12(1) Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301 confers upon the Tribunal various powers, including the power to determine whether a tenancy is a controlled tenancy and, importantly for purposes of this appeal, the power under ELCA NO. E002 OF 2025 JUDGMENT Page 9

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section 12(1)(b) to determine or vary the rent payable in respect of a controlled tenancy, having regard to all the circumstances thereof. 41. The Appellant’s contention herein is that the notice of termination by the Respondent dated 15.02.2024 had been pronounced ineffective and unlawful by the tribunal and therefore the said tribunal ought to have not entertained the said Application because it had no jurisdiction hence the tribunal should have downed its tools. 42. In addition, the Appellant did submit that the Jurisdiction of the BPRT is determinable by the validity of a notice and once the validity of the notice has been determined inapplicable, the said tribunal had no further business in a reference. 43. The Respondent on the other hand has a contrary view on the said matter herein. It is the Respondent’s submission on the said matter, that the Tribunal made investigations as per the request of the Appellant and the Tribunal had the jurisdiction to investigate the matter and determine the matter which was under investigation. This is in reference to Section 12(4) of the Landlord and Tenant (Shops, Hotel and Catering Establishment), Act Cap 301. 44. Therefore, from each parties submissions, the major underlying issues herein emanating from this Appeal, is whether the ELCA NO. E002 OF 2025 10 JUDGMENT Page

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Tribunal's finding that the particular notices were unlawful meant that it thereby lost jurisdiction over the entire reference. 45. It is my view that the Honourable Tribunal herein did not lose its Jurisdiction. 46. There is a thin line between the issue of Jurisdiction and the merits of the validity of a notice. This is because the fact that a tribunal has jurisdiction to determine whether a notice is valid does not mean that an adverse finding concerning the notice automatically extinguishes its jurisdiction over every other matter falling within the statutory dispute before it. 47. Section 6 of the Landlord and Tenant (Shops, Hotel and Catering Establishment) Act, Cap 301 stipulates: (1) A receiving party who wishes to oppose a tenancy notice, and who has notified the requesting party under section 4(5) of this Act that he does not agree to comply with the tenancy notice, may, before the date upon which such notice is to take effect, refer the matter to a Tribunal, whereupon such notice shall be of no effect until, and subject to, the determination of the reference by the Tribunal: Provided that a Tribunal may, for sufficient reason and on such conditions as it may think fit, permit such a reference notwithstanding that the receiving party ELCA NO. E002 OF 2025 11 JUDGMENT Page

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has not complied with any of the requirements of this section. (2)A Tribunal to which a reference is made shall, within seven days after the receipt thereof, give notice of such reference to the requesting party concerned. 48. In addition, Section 9 of the Landlord and Tenant (Shops, Hotel and Catering Establishment) Act, Cap 301 further stipulates: (1) Upon a reference a Tribunal may, after such inquiry as may be required by or under this Act, or as it deems necessary— (a)approve the terms of the tenancy notice concerned, either in its entirety or subject to such amendment or alteration as the Tribunal thinks just having regard to all the circumstances of the case; or (b)order that the tenancy notice shall be of no effect; (c)and in either case make such further or other order as it thinks appropriate. (2) Without prejudice to the generality of this section, a Tribunal may, upon any reference— (a)determine or vary the rent to be payable in respect of the controlled tenancy, having regard to the terms thereof and to the rent at which the premises ELCA NO. E002 OF 2025 12 JUDGMENT Page

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concerned might reasonably be expected to be let in the open market, and disregarding— (i)any effect on rent of the fact that the tenant has, or his predecessors in title have, been in occupation of the premises; (ii)any goodwill attached to the premises by reason of the carrying on thereat of the trade, business or occupation of the tenant or any such predecessor; (iii)any effect on rent of any improvement carried out by the tenant or any such predecessor otherwise than in pursuance of an obligation to the immediate landlord; (b)terminate or vary any of the terms or conditions of the controlled tenancy, or any of the rights or services enjoyed by the tenant, upon such conditions, if any, as it deems appropriate. (3) Where a Tribunal has made a determination upon a reference, no further tenancy notice shall be given in respect of the premises concerned, which is based on any of the matters affected by the determination— (a)in the case of an assessment of rent, until after the expiration of two years; or (b)in any other case, until after the expiration of twelve months, after the date of the determination, unless the Tribunal, at the time of the determination, specifies some shorter period. ELCA NO. E002 OF 2025 13 JUDGMENT Page

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49. The Respondent's submission that section 12(4) empowered the Tribunal to investigate the complaint is therefore not without merit. The record demonstrates that the Appellant's own reference asked the Tribunal to investigate the matter and determine the issue involved. The Tribunal accordingly remained seized of a dispute concerning a controlled tenancy. 50. It is significant that the Tribunal did not purport to validate the impugned notices after declaring them unlawful but rather, it expressly declared the notices of no legal effect and thereafter considered the appropriate rent payable in the controlled tenancy. 51. The principle in Owners of the Motor Vessel "Lillian S" is not authority for the proposition that every successful jurisdictional or procedural objection to one aspect of a dispute automatically deprives a tribunal of jurisdiction over all matters within its statutory mandate. I am of the considered view that the question must always be: what jurisdiction did the statute confer upon the Tribunal over the dispute before it in order to come to a conclusion on the issue at hand when it comes to Jurisdiction. 52. Taking a keen understanding on the issue at hand as per the said Act, which expressly stipulates that, upon a reference, the Tribunal may determine or vary the rent payable in a controlled ELCA NO. E002 OF 2025 14 JUDGMENT Page

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tenancy, the rent determination is therefore not dependent exclusively upon the validity of a landlord's notice of termination. 53. I consequently find that the Tribunal did not lose jurisdiction merely because it found the notices unlawful. It retained jurisdiction to determine the dispute relating to the controlled tenancy and, where properly invoked and supported by evidence, to determine or vary the rent payable. B. Whether the Tribunal erred in ordering the payment of rent at Kshs.10,000/= per month with effect from 1st November 2024; 54. The Appellant herein characterizes the order as retrospective and submits that the Tribunal had no jurisdiction to make it after declaring the notices unlawful. He further submits that he had been paying Kshs.1,500/= and was not in arrears. 55. On the other hand, the Respondent submits that the order was not retrospective. She points out that the Tribunal did not order the Appellant to pay Kshs.10,000/= for a period preceding the effective date of the order. Rather, that the Tribunal determined the rent payable prospectively from 1st November, 2024. 56. From the perusal of the said submissions by both parties I tend to agree with the Respondent herein on the said matter. 57. Retrospective Law is thereby defined as:ELCA NO. E002 OF 2025 15 JUDGMENT Page

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“A law which looks backward or contemplates the past; one which is made to affect acts or facts occurring, or rights accruing, before it came into force. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past.” 58. The Tribunal as per the judgement dated 14.11.2024 ordered that the said Appellant herein to pay rent for the demised premises at Kshs. 10,000/- per month effective from 01. 11. 2024. 59. In addition, the Tribunal's own inspection report was dated 7th October 2024. The Tribunal found that comparable premises in the area attracted rent of Kshs.10,000/=. The Tribunal therefore selected a date subsequent to the inspection and made the new rent effective from 1st November 2024. 60. Consequently, I can draw a conclusive opinion that there is no order of retrospective effect as argued by the Appellant. The Tribunal did not order the Appellant to pay Kshs.10,000/= for periods during which the amount had not been determined. 61. Therefore, pursuant to Section 9 of the Landlord and Tenant (Shops, Hotel and Catering Establishment) Act, Cap 301 as earlier stipulated, the Tribunal is empowered, upon ELCA NO. E002 OF 2025 16 JUDGMENT Page

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a reference, to determine or vary the rent payable in a controlled tenancy considerations. The having regard Tribunal was to the therefore statutory entitled to determine the appropriate rent as part of its resolution of the controlled tenancy dispute. 62. The effective date chosen by the Tribunal was also not arbitrary. It followed the inspection undertaken on 7th October 2024 and preceded the date from which the Tribunal directed the new rent to become payable. 63. In conclusion, I do not find any error whatsoever in the Tribunal's decision to make the rent of Kshs.10,000/= effective from 1st November, 2024. C. Whether the Tribunal failed to have regard to all the circumstances of the controlled tenancy in determining the rent payable; 64. In regard to the above issue, the Appellant submits that the Tribunal failed to properly consider the circumstances before increasing the rent from Kshs.1,500/= to Kshs.10,000/= while the Respondent submits that the Appellant has not identified any particular relevant circumstance which the Tribunal failed to consider. On the contrary, the Respondent points out that the Tribunal undertook an inspection and considered the prevailing rent for comparable premises within Kihuga Square. ELCA NO. E002 OF 2025 17 JUDGMENT Page

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65. The tendered evidence before the Tribunal was that the Appellant had paid Kshs.1,500/= for over 30 years. However, the mere fact that a tenant has enjoyed a particular rent for a long period does not, without more, make that rent immutable. 66. The Respondent asserted that other tenants were paying Kshs.10,000/=. The Tribunal heard evidence from another tenant and, importantly, caused its own inspector to visit the premises and surrounding area. 67. The inspector's report dated 7th October 2024 was not merely an assertion by the Respondent. It constituted evidence obtained through the Tribunal's own investigative process concerning comparable premises in the area. 68. The Tribunal recorded that the rent for similar spaces in the area was Kshs.10,000/= and that the inspector had spoken to seven other tenants before arriving at that figure. The Tribunal also considered evidence concerning the rent paid by another tenant occupying comparable space. 69. This Honourable Court is therefore unable to agree with the Appellant that the Tribunal acted without evidence or failed to consider the relevant circumstances. On the contrary, the Tribunal considered the historical rent, the prevailing rent in the area and evidence relating to comparable premises. D.Whether the Appeal is merited; ELCA NO. E002 OF 2025 18 JUDGMENT Page

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70. The duty of an appellate court is now well settled. An appellate court will not interfere with findings of fact unless they are based on no evidence, a misapprehension of the evidence, or the wrong application of legal principles. 71. Having considered each of the grounds separately, I find that the central complaint of the Appellant rests upon a misconception that once the Tribunal declared the notices unlawful, it became functus officio and was required to down its tools herein. 72. The said proposition by the Appellant does not go hand in hand with the Tribunal’s mandate as per the Landlord and Tenant (Shops, Hotel and Catering Establishment) Act, Cap 301. 73. It is therefore my considered view that the Tribunal had jurisdiction over the controlled tenancy and was entitled, within the confines of its statutory mandate, to investigate the dispute and make an appropriate order concerning rent. 74. The declaration that the notices were unlawful did not validate those notices and did not authorize the Respondent to terminate the tenancy on that aspect. 75. Further, the Tribunal's order did not purport to enforce the unlawful notices. It instead determined the rent payable prospectively from 1st November 2024. 76. In addition, in respect to the above, the Tribunal relied on evidence relating to comparable premises and the inspection undertaken by its officer. ELCA NO. E002 OF 2025 19 JUDGMENT Page

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77. Consequently, therefore, the Appeal is without merit and is dismissed. F. Who should bear the costs of the present appeal ; 78. The general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act unless the court directs otherwise. 79. In view of the circumstances of this case and the findings above, which are to the effect that the appeal is not merited on account that the Tribunal had jurisdiction to determine the rent payable in the controlled tenancy notwithstanding its finding that the notices dated 14th December 2023 and 15th February 2024 were unlawful, this court finds that it is necessary for the Appellant to bear the costs of the appeal. CONCLUSION: 80. In the upshot, I accordingly find that the Memorandum of Appeal dated 22nd January, 2025 is not merited and the court hereby makes the following orders: a) The Appeal is hereby dismissed. b) The judgment and orders of the Business Premises Rent Tribunal in Eldoret BPRT Case No. E031 of 2024 delivered on 14th November, 2024 are hereby upheld. ELCA NO. E002 OF 2025 20 JUDGMENT Page

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c) The Tribunal's order fixing the rent payable by the Appellant at Kshs.10,000/- per month with effect from 1st November, 2024 is hereby affirmed. d) The Appellant herein shall bear the costs of the Appeal. 81. It is so ordered. DATED, SIGNED and DELIVERED in ELDORET this 17th day of SEPTEMBER, 2026. HON. C. K. YANO JUDGE In presence of: Ms. Munyua Advocate for the Respondent. Mr. Wambua Kigamwa advocate for the Appellant. Court Assistant – Laban ELCA NO. E002 OF 2025 21 JUDGMENT Page

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