Touchstone Properties Limited v Catherine Ndiwa Mwobia

5,000,000/= and assumed occupation of the premises. The Appellant maintains that the arrangement was undertaken with the knowledge and consent of the Respondent. The Respondent disputes the extent and legal effect of that arrangement and contends, among other things, that there was no documented consent to the purported assignment relied upon by the Appellant. 4. The dispute eventually found its way to the Tribunal following differences between the parties concerning the continued occupation of the premises. An earlier termination notice was considered by the Tribunal, and in its ruling of 25th June 2025 the Tribunal permitted the Respondent to issue a fresh notice in accordance with the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. Thereafter, on 30th July 2025, the Respondent issued a further notice seeking termination of the tenancy, principally on the grounds of alleged non-payment of rent and an intention to occupy the premises for personal use. 5. During the proceedings before the Tribunal, the Appellant challenged the validity of the termination notice dated 30th July 2025. The Tribunal ultimately dismissed the Appellant’s Reference and application and upheld the said notice. Being dissatisfied with that determination, the Appellant lodged the present appeal through its Memorandum of Appeal dated 21st November 2025. 6. In its Memorandum of Appeal, the Appellant faults the Tribunal, inter alia, for upholding a termination notice which it contends was not issued in the prescribed statutory form; for finding in favour of the Respondent on the ground of intended personal occupation; for allegedly failing to consider the Appellant’s investment in the premises; and for allegedly disregarding binding judicial precedent. The Appellant consequently seeks the setting ELC APPEAL NO. E248 OF 2025 2

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aside of the Tribunal’s decision, the allowing of its Reference and the declaration that the termination notice dated 30th July 2025 was invalid. Appellant’s Submissions 7. On 4th May 2026, the parties took directions that the appeal be canvassed by way of written submissions. In its submissions, the Appellant identified three issues for determination, namely: whether the Tribunal erred in law by upholding a termination notice which did not conform to the mandatory statutory Form A; whether the Respondent proved the alleged nonpayment of rent to the requisite legal standard; and whether the Respondent discharged the statutory burden necessary to justify termination of the tenancy on the ground of personal occupation under Section 7(1)(g) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. 8. On the first issue, the Appellant submitted that Section 4(2) of Cap. 301 requires a landlord seeking to terminate a controlled tenancy to issue the notice in the prescribed form, and that the letter dated 30 th July 2025 could not constitute a valid tenancy notice. In support of that position, the Appellant relied on Manaver N. Alibhai t/a Diani Boutique -Vs- South Coast Fitness & Sports Centre Limited [1995] LLR, Lali -Vs- Jeypee Investments Ltd [1971] EA 512 and Narshidas & Co. Ltd -Vs- Nyali Air Conditioning and Refrigeration Services Ltd (CA Civil Appeal No. 235 of 1995), for the proposition that compliance with the statutory form and requirements governing termination notices is mandatory and that a notice issued otherwise is ineffective. 9. On the remaining issues, the Appellant contended that the Respondent had not adduced sufficient evidence to establish rent arrears, pointing in ELC APPEAL NO. E248 OF 2025 3

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particular to the absence of rent records, ledgers, bank statements or demand notices and relying on Sections 107 and 109 of the Evidence Act on the burden of proof. It further argued that the Respondent had failed to demonstrate a genuine and bona fide intention to occupy the premises for personal use as contemplated under Section 7(1)(g) of Cap. 301. In that regard, the Appellant relied on Fatma Ahmed Al Mandry v Rahma Omar (Mombasa BPRT No. 114 of 2021) and also invoked the principles of proprietary estoppel and hardship, citing Bhogal -Vs- Burbidge [1975] E.A. 285, while emphasizing the alleged investment of Kshs.5,000,000/= made in the premises. Respondent’s Submissions 10. The Respondent opposed the appeal and identified five broad issues for determination: whether the Appellant’s failure to notify the Respondent under Section 4(5) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act was fatal to the Reference; whether the termination notice dated 30th July 2025 substantially complied with Section 4(2) of the Act; whether the Tribunal properly evaluated the evidence on rent default under Section 7(1)(b); whether the Respondent satisfied the requirements for termination on the ground of personal occupation under Section 7(1) (g); and whether the Appellant had demonstrated any misdirection in law or misapprehension of evidence sufficient to warrant appellate interference. 11. On the preliminary issue, the Respondent submitted that compliance with Section 4(5) was a jurisdictional prerequisite to a competent Reference under Section 6(1) and that there was no evidence that the Appellant had notified the Respondent that it did not agree to comply with the termination notice. In support of that position, the Respondent relied on Speaker of the National Assembly -Vs- Karume [1992] KECA 42 ELC APPEAL NO. E248 OF 2025 4

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(KLR) and Lymo & Wakio t/a Helegion Autoparts -Vs- Dock Workers Union [2025] KEBPRT 332 (KLR). On the form of the notice, the Respondent maintained that the notice substantially complied with Section 4(2), and relied on Article 159(2)(d) of the Constitution, Nicholas Kiptoo Arap Korir Salat -Vs- IEBC & 6 Others [2013] eKLR and Patel -Vs- E.A. Cargo Handling Services Ltd [1974] EA 75 in urging the Court not to elevate form over substantive justice. 12. On the substantive grounds of termination, the Respondent contended that the evidence disclosed persistent late payment of rent and that the allegation that she had interfered with the Appellant’s rent collection arrangements was unsupported. She further submitted that she had demonstrated a bona fide intention to recover the premises for personal use within the meaning of Section 7(1)(g), relying on Maina v Administrators of the Estate of the Late Bernard Odipo [2025] KEBPRT 150 (KLR). The Respondent also disputed the Appellant’s reliance on proprietary estoppel and hardship, arguing that the alleged Kshs. 5,000,000/= investment was undocumented and that the Appellant’s occupation arose from a disputed assignment. She consequently urged the Court to dismiss the appeal, uphold the Tribunal’s decision and award her the costs of the appeal. Issues for Determination 13. Having considered the Memorandum of Appeal, the Record of Appeal and the parties’ submissions, the issues arising for determination are: a) Whether the termination notice dated 30 th July 2025 was valid under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301; and ELC APPEAL NO. E248 OF 2025 5

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b) Whether the Respondent proved the grounds relied upon for termination of the tenancy and whether the Tribunal was therefore justified in dismissing the Appellant’s Reference. Analysis and Determination 10. This being a first appeal, this Court is enjoined to reconsider and re- evaluate the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the parties. In Selle -VsAssociated Motor Boat Co. Ltd [1968] EA 123, as restated in Kenya Ports Authority -Vs- Kuston (Kenya) Limited [2009] 2 EA 212, the Court of Appeal stated: “On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 11. Guided by the foregoing principles, I now turn to the issues identified for determination. ISSUE No: 1 Whether the termination notice dated 30 th July 2025 was valid under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301; 12. The starting point is Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. Section 4(1) provides that a controlled tenancy shall not terminate or be terminated otherwise than in accordance with the provisions of the Act. Section 4(2) specifically provides that a landlord wishing to terminate a controlled tenancy “shall give notice in that behalf to the tenant in the prescribed form.” Regulation ELC APPEAL NO. E248 OF 2025 6

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4(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations prescribes Form A as the notice to be used by a landlord under Section 4(2). The statutory scheme therefore prescribes both the right to terminate and the procedure by which that right is to be exercised. 13. Section 4(5) is equally material. It provides that a tenancy notice shall not be effective for any of the purposes of the Act unless it specifies the grounds upon which termination is sought and requires the receiving party to notify the requesting party in writing, within one month after receipt of the notice, whether or not he agrees to comply with it. The requirement is therefore not confined to the physical appearance of Form A; the notice must also communicate the substantive statutory rights and obligations attaching to it. 14. The mandatory nature of this statutory procedure was emphasized by the Court of Appeal in Munaver N. Alibhai t/a Diani Boutique -VsSouth Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 [1995] eKLR. The Court recognised that Cap. 301 lays down the procedure by which a controlled tenancy may lawfully be terminated and that non-compliance with the prescribed statutory procedure renders the purported termination ineffective. The Appellant similarly relied on Lali Vs- Jeypee Investments Ltd [1971] EA 512 and Narshidas & Company Limited -Vs- Nyali Air Conditioning and Refrigeration Services Limited, Civil Appeal No. 205 of 1995, in support of the proposition that the statutory requirements governing termination of a controlled tenancy must be observed. 15. More recently, in Oloolmaitai & 2 others -Vs- Leo Investments Limited [2026] KEELC 5440 (KLR), the Environment and Land Court ELC APPEAL NO. E248 OF 2025 7

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held that the requirement for a prescribed notice is not a mere technicality. The prescribed notice serves the substantive purpose of informing the tenant with certainty of the landlord's intention, the grounds relied upon and the steps which the tenant is required to take upon receipt of the notice. 16. In the present appeal, the notice dated 30 th July 2025 was issued by the Respondent's advocates in the form of an ordinary letter. It identified the premises, gave two months' notice and stated two grounds for termination, namely alleged persistent non-payment of rent and the Respondent's intention to occupy the premises for her own personal use. However, it was not issued in Form A. Further, instead of requiring the Appellant to notify the Respondent in writing whether or not it agreed to comply with the notice as contemplated by Section 4(5), the letter stated that, should the Appellant object to the notice or contest its validity or grounds, it was entitled to refer the matter to the Tribunal within one month. 17. The Tribunal acknowledged that the notice had been issued in the form of a letter rather than Form A but held that it substantially contained the necessary details. In arriving at that conclusion, the Tribunal relied on Section 72 of the Interpretation and General Provisions Act, Article 159(2)(d) of the Constitution, Nicholas Kiptoo Arap Korir Salat -VsIEBC & 6 Others [2013 eklr and Patel -Vs- E.A. Cargo Handling Services Ltd [1974] EA 75, and treated the departure from Form A as a procedural defect that did not affect the substance of the notice. The Respondent advances the same position in this appeal. 18. Section 72 of the Interpretation and General Provisions Act, however, does not validate every departure from a prescribed form. It applies where the deviation does not affect the substance of the instrument and is not ELC APPEAL NO. E248 OF 2025 8

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calculated to mislead. In this case, the departure was not merely one of format. Section 4(5) expressly makes the effectiveness of the tenancy notice dependent upon the notice requiring the receiving party to give the prescribed written response. The impugned letter did not contain that requirement but instead directed the Appellant towards a reference to the Tribunal. The deviation therefore concerned part of the substantive statutory procedure itself. 19. Article 159(2)(d) of the Constitution does not alter that position. Although courts are enjoined to administer justice without undue regard to procedural technicalities, the provision does not dispense with substantive statutory requirements. In the same vein, Nicholas Kiptoo Arap Korir Salat (Supra) cannot be understood as authority for disregarding an express statutory condition, while Patel -Vs- E.A. Cargo Handling Services Ltd [1974] EA 75, concerned procedural defects which did not defeat substantive justice. The question here is whether the statutory conditions upon which a controlled tenancy may be terminated were satisfied. 20. The Respondent further contends that the Appellant failed to notify her under Section 4(5) that it did not agree to comply with the notice and that the subsequent Reference was therefore incompetent under Section 6(1). Section 6(1) indeed contemplates that a receiving party wishing to oppose a notice will first have given the notification required under Section 4(5). It must, however, be read together with the proviso thereto, which empowers the Tribunal, for sufficient reason and on such conditions as it thinks fit, to permit a reference notwithstanding non-compliance with the requirements of that section. More fundamentally, the obligation relied upon by the Respondent presupposes an effective tenancy notice issued in conformity with Section 4. Where the notice itself failed to require the statutory notification contemplated by Section 4(5), the Respondent cannot rely upon the Appellant's omission to give that very notification as ELC APPEAL NO. E248 OF 2025 9

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a basis for validating an otherwise defective notice. 21. This construction is reinforced by Section 10 of the Act. That provision gives effect to an unopposed notice only “where a landlord has served a notice in accordance with the requirements of section 4.” Compliance with Section 4 is therefore antecedent to the operation of Section 10. A notice which does not satisfy Section 4(2) and Section 4(5) cannot acquire validity merely because the tenant did not take the subsequent procedural steps contemplated under Sections 6 and 10. 22. I therefore find that the notice dated 30 th July 2025 did not comply with Section 4(2) and Section 4(5) of Cap. 301, read together with Regulation 4(1) of the applicable Regulations. The Tribunal consequently erred in treating the departure from the prescribed Form A as a mere procedural defect capable of being cured by substantial compliance. The notice was ineffective for purposes of the Act and was incapable of lawfully terminating the Appellant's controlled tenancy. ISSUE No: 2 Whether the Respondent proved the grounds relied upon for termination of the tenancy and whether the Tribunal was therefore justified in dismissing the Appellant’s Reference. 23. Having found that the notice dated 30 th July 2025 did not comply with Section 4 of the Act, that finding is sufficient to dispose of the appeal. However, the parties addressed the substantive grounds of termination at length and the Tribunal ultimately confirmed the notice and ordered vacant possession. I therefore consider it appropriate to examine whether the grounds stated in the notice were, in any event, established. 24. Section 7(1) of Cap. 301 provides that where a landlord has served a notice of termination under Section 4, the landlord may rely upon such of the statutory grounds as are stated in the notice. Under Section 7(1)(b), ELC APPEAL NO. E248 OF 2025 10

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termination may be sought where the tenant has defaulted in paying rent for a period of two months after it became due or payable, or has persistently delayed in paying rent. Under Section 7(1)(g), the landlord must intend, upon termination, to occupy the premises for a period of not less than one year for purposes, or partly for purposes, of a business to be carried on by the landlord therein, or as the landlord’s residence. 25. On the question of rent, the record contains a rent-payment schedule showing the dates on which various monthly payments were made. The schedule indicates, among other things, that payments attributed to April, May, June and July 2025 were made in July 2025. The Respondent relied on that payment pattern as evidence of persistent delay, while the Appellant maintained that the alleged default had not been sufficiently proved. The relevant inquiry under Section 7(1)(b) is therefore not simply whether rent was ultimately paid, but whether the evidence established either a default extending for two months after rent became due or a persistent pattern of delayed payment. 26. In the present case, the payment schedule is capable of showing delayed payments. However, the impugned ruling did not analyse that schedule against the statutory test in Section 7(1)(b). The Tribunal did not make a finding as to when each instalment became due, whether any particular rent remained unpaid for two months after falling due, or whether the pattern disclosed such repeated delay as to amount to persistent delay within the meaning of the Act. Instead, having found the notice valid, it proceeded directly to dismiss the Reference and uphold the termination. 27. The second ground stated in the notice was the Respondent’s intention to occupy the premises for her own personal use. Section 7(1)(g) is specific ELC APPEAL NO. E248 OF 2025 11

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as to the character of that intended occupation: the landlord must intend to occupy the premises for at least one year either for a business to be carried on by the landlord or as the landlord’s residence. The statute does not require architectural drawings, licences or a fully developed business plan. 28. In this case, the notice itself stated that the Respondent intended to occupy the premises “for her own personal use.” The difficulty is that the Tribunal did not interrogate whether that stated intention amounted to occupation for a business to be carried on by the Respondent or as her residence, as required by Section 7(1)(g). Nor did it make any finding on whether that intention was genuine and intended to subsist for the statutory minimum period of one year. 29. The omission is material. A tenancy notice stating a statutory ground does not, merely by being valid in form, establish the factual basis of that ground where it is contested. The Tribunal was required to determine whether the evidence brought the case within Section 7(1)(b) or Section 7(1)(g). Its ruling did not undertake that analysis. 30. On my own evaluation of the record, there was material capable of supporting an allegation of delayed rent payments, but the Tribunal did not determine whether that material satisfied the statutory threshold under Section 7(1)(b). As regards Section 7(1)(g), the material placed before the Tribunal did not sufficiently establish that the intended “personal use” fell within either of the two purposes prescribed by the section. I therefore find that the Tribunal erred in upholding the termination without making the necessary findings on the statutory grounds relied upon. Final Disposition ELC APPEAL NO. E248 OF 2025 12

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31. The upshot of the foregoing is that the appeal is meritorious. The Tribunal erred in upholding the termination notice dated 30 th July 2025 notwithstanding its non-compliance with the mandatory requirements of Section 4(2) of Cap. 301 and further in confirming the termination without sufficient proof of the statutory grounds relied upon. 32. Consequently, the appeal is allowed and I make the following orders: a) The Ruling and consequential orders of the Business Premises Rent Tribunal delivered on 14th November 2025 in BPRT Case No. E818 of 2025 are hereby set aside. b) The Appellant’s Reference dated 24th July 2025 is hereby allowed. c) The termination notice dated 30th July 2025 is hereby declared invalid and of no legal effect. d) The Appellant shall have the costs of this appeal. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on 24th day of September, 2026. MOHAMMED N. KULLOW JUDGE Judgement delivered in the presence of: - ELC APPEAL NO. E248 OF 2025 13

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Ms. Anyangu N/A for the Applicant for the Respondent Ms. Mwangi ELC APPEAL NO. E248 OF 2025 Court Assistant 14

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