Iqbaal, Whitley Investment Limited, Homeplus Realtors Limited & Pyramid Auctioneers v Abdikadir Elmi Rooble, Abdulkader Hussein Suriya, Hanifa Abdulkader Hussein Suriya Adil, Abdulkader Suriya & Muhammed Abdulkader Suriya

1. This is a first appeal arising from the Judgment of the Business Premises Rent Tribunal at Nairobi delivered by Hon. Mike Makori on 20 th January 2025 in BPRT/E095/2024, which had been consolidated with BPRT/E1130/2023. The appeal was instituted by the Appellants through a Memorandum of Appeal dated 13 th February 2025, challenging the entire Judgment and the consequential orders of the Tribunal. 2. The proceedings which culminated in the impugned Judgment arose from two separate references concerning the same premises. The earlier proceedings, BPRT/E1130/2023, were commenced by the 1 st Respondent against Whitley Investment Limited, Homeplus Realtors Limited and Pyramid Auctioneers. The Record of Appeal shows that the reference was lodged on 15th March 2023, together with an application concerning, inter alia, the threatened or intended distress for rent. 3. The subsequent proceedings, BPRT/E095/2024, were commenced by the 1st Respondent on 26th January 2024 against Abdulkader Hussein Suriya, Hanifa Abdulkader Hussein Suriya Adil, Abdulkader Suriya, Muhammed Abdulkader Suriya and Iqbaal. The latter proceedings were accompanied by a Certificate of Urgency, Notice of Motion and Supporting Affidavit sworn by the 1st Respondent on the same date. The Tribunal subsequently issued orders on 29th January 2024. 4. At the centre of the dispute was the nature of the tenancy over premises situated on L.R. No. 209/1655/2. The Appellants' case before the Tribunal, and now on appeal, was that the tenancy had been reduced into writing by a Lease Agreement dated 13 th May 2021, made between Whitley Investment Limited and Abdikadir Elmi Rooble, for a term of ten (10) years commencing on 1st May 2021 and expiring on 30th April 2031. On that basis, the Appellants contended that the tenancy did not fall within the statutory definition of a controlled tenancy under Section 2(1) of the Landlord ELCLA NO. E032 OF 2025 and Tenant (Shops, Hotels and Catering 2

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Establishments) Act, Cap. 301, and that the Tribunal therefore lacked jurisdiction to entertain the dispute. 5. The Tribunal nevertheless proceeded with the consolidated matters and rendered its Judgment on 20th January 2025. Aggrieved by that decision, the Appellants lodged the present appeal raising seventeen grounds of appeal, principally challenging the Tribunal's jurisdiction, its treatment of the Lease Agreement and the evidence relating to the tenancy, the alleged non-disclosure by the 1st Respondent, the evidential basis of the reliefs granted, and the ultimate findings made by the Tribunal. THE APPEAL 6. The Appellants lodged a Memorandum of Appeal dated 13th February 2025 raising seventeen grounds of appeal. In summary, they challenge the Tribunal’s jurisdiction on the basis of the written Lease Agreement dated 13th May 2021 over L.R. No. 209/1655/2, which they contend created a tenancy for a term exceeding five years and therefore fell outside the definition of a controlled tenancy under section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. They further fault the Tribunal for failing to properly consider the Lease Agreement, the evidence relating to its execution, the 1 st Respondent’s admissions on the tenancy and rent, and the evidence concerning the condition and existing structures on the premises. 7. The Appellants also contend that the Tribunal failed to address the alleged non-disclosure arising from the institution of BPRT/E1130/2023 and the subsequent BPRT/E095/2024, failed to give effect to the arbitration clause contained in the Lease, and made findings on the 1 st Respondent’s alleged developments or investments without sufficient evidential basis, including a valuation report. They also challenge the ELCLA NO. E032 OF 2025 3

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nature and enforceability of the final orders and contend, overall, that the Tribunal’s decision was unsupported by the evidence and the applicable law. APPELLANTS’ SUBMISSIONS 8. The Appellants filed written submissions dated 23rd June 2026 in support of the appeal. They condensed the seventeen grounds of appeal into five issues for determination, namely: whether the Tribunal had jurisdiction to entertain and determine the dispute; whether it properly evaluated the evidence concerning the Lease Agreement and the landlord-tenant relationship; whether the 1st Respondent’s proceedings were vitiated by material non-disclosure, misrepresentation and abuse of process; whether the Tribunal erred in granting reliefs based on unproven investments and in issuing unenforceable orders; and whether the Tribunal’s decision was against the weight of the evidence and occasioned a miscarriage of justice. 9. On jurisdiction, the Appellants submitted that the tenancy was governed by a written Lease dated 13th May 2021 for a term of ten years and therefore did not constitute a controlled tenancy under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. They further contended that the Tribunal disregarded the Lease, the arbitration clause contained therein, the documentary and oral evidence on the tenancy relationship, the 1st Respondent’s admissions on rent and occupation, and the evidence relating to structures on the premises. 10. On the remaining issues, they argued that there had been material non-disclosure, that the alleged investments and developments were not proved by valuation evidence, and that the orders issued by the Tribunal ELCLA NO. E032 OF 2025 4

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were contingent and incapable of enforcement. In support of their case, they relied on Owners of the Motor Vessel “Lillian S” -Vs- Caltex Oil (Kenya) Ltd [1989] KLR 1; Macharia & Another -Vs- Kenya Commercial Bank Ltd & 2 Others [2012] eKLR; Re Hebtulla Properties Ltd [1979] KLR 96; James Munuthi Wathingira & Another -Vs- Stephen Muchiri Kariuki & 2 Others [2009] eKLR; Herbert Hahn -Vs- Amrik Singh [1985] KLR 716; Phoenix of E.A. Assurance Company Limited -Vs- S. M. Thiga t/a Newspaper Service [2019] eKLR; Republic -Vs- Chairperson, Business Premises Rent Tribunal & Another Ex Parte Suraj Housing & Properties Limited & 2 Others [2016] eKLR; and Republic -VsBusiness Premises Rent Tribunal & Another Ex Parte Albert Kigera Karume [2015] eKLR. 11. The Respondents participated in the appeal but did not file written submissions. ISSUES FOR DETERMINATION 12. Having considered the Memorandum of Appeal, the Record of Appeal and the Appellants’ submissions, the Court is of the view that the appeal raises the following two issues for determination: a) Whether the Tribunal had jurisdiction to determine the dispute. b) Whether the Tribunal properly evaluated the evidence and whether its findings and orders were supported by the evidence and the law. ANALYSIS AND DETERMINATION Issue No:1 Whether the Tribunal had jurisdiction to determine the dispute ELCLA NO. E032 OF 2025 5

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13. The jurisdiction of the Business Premises Rent Tribunal in the present dispute depended on whether the tenancy before it was a controlled tenancy within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. Section 2(1) of the Act defines a controlled tenancy in the following terms: “controlled tenancy” means a tenancy of a shop, hotel or catering establishment— (a) which has not been reduced into writing; or (b) which has been reduced into writing and which— (i) is for a period not exceeding five years; or (ii) contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or (iii) relates to premises of a class specified under subsection (2) of this section. 14. Section 12(1)(a) of the Act, on the other hand, empowers the Tribunal “to determine whether or not any tenancy is a controlled tenancy.” The Tribunal therefore had authority to interrogate the nature of the tenancy placed before it. The question, however, is whether upon consideration of the material before it, the tenancy satisfied the statutory definition in section 2(1) so as to clothe the Tribunal with jurisdiction to proceed with the substantive dispute. 15. The record contained a written Lease between Whitley Investments Limited and Abdikadir Elmi Rooble in respect of part of L.R. No. 209/1655/2. The Lease expressly provided that the term would run from 1st May 2021 to 30th April 2031. It further stipulated the rent payable during the various periods of the tenancy, described the premises leased to the 1st Respondent and set out the parties’ respective obligations. The instrument was executed by Whitley Investments Limited and the 1 st ELCLA NO. E032 OF 2025 6

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Respondent, whose execution was certified by an advocate on 13th May 2021. Clause 11 also provided for disputes between the parties to be referred to arbitration. 16. The Tribunal was itself alive to the significance of the Lease. In the impugned Judgment, it framed as separate issues whether the Lease Agreements were valid and whether it had jurisdiction to hear and determine the matter. It thereafter considered the evidence touching on the agreements and ultimately found that there was no binding contractual agreement between the parties. Having reached that conclusion, the Tribunal proceeded to classify the tenancy as a controlled tenancy under section 2(1) of Cap. 301 and assumed jurisdiction over the dispute. 17. In Republic -Vs- Chairperson, Business Premises Rent Tribunal at Nairobi & Another Ex Parte Suraj Housing & Properties Limited & 2 Others [2016] eKLR, the Court, citing Pritam -Vs- Ratilal & Another [1972] EA 560, emphasised that the applicability of Cap. 301 is a condition precedent to the exercise of the Tribunal’s jurisdiction and that there must exist a controlled tenancy as defined under section 2 of the Act. Outside that statutory relationship, the Tribunal has no jurisdiction. The Court further recognised that where jurisdiction depends upon the existence of particular facts, the Tribunal is entitled to inquire into those facts in order to determine whether the jurisdictional foundation exists. 18. Applying those principles to the present case, the inquiry could not end merely with the Tribunal expressing doubt as to the Lease. There was before it an executed written instrument whose terms were ascertainable on its face. It provided for a tenancy of ten years and there is no provision ELCLA NO. E032 OF 2025 7

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apparent in the instrument permitting termination, otherwise than for breach of covenant, within the first five years. The terms of the Lease therefore had to be tested directly against Section 2(1)(b). On that statutory test, a written tenancy of ten years, without such a termination provision within the first five years, does not fall within the definition of a controlled tenancy. 19. The Tribunal therefore fell into error when, having questioned the validity of the Lease, it treated the tenancy as though it had not been reduced into writing and proceeded to assume jurisdiction under Cap. 301. Its power under Section 12(1)(a) entitled it to determine whether the tenancy was controlled; it did not permit it to exercise the wider substantive powers under the Act once the material before it disclosed a tenancy falling outside section 2(1). 20. I consequently find that the tenancy between the 2 nd Appellant and the 1st Respondent was not a controlled tenancy within the meaning of Cap. 301. The Tribunal therefore lacked jurisdiction to determine the substantive dispute in BPRT/E095/2024 as consolidated with BPRT/E1130/2023. b. Whether the Tribunal properly evaluated the evidence and whether its findings and orders were supported by the evidence and the law 21. Having found that the Tribunal lacked jurisdiction, the impugned determination cannot stand on that ground alone. However, as the Appellants also challenged the Tribunal’s evaluation of the evidence and the nature of the consequential orders, and the matter was fully argued before this Court, I shall address the second issue for completeness. ELCLA NO. E032 OF 2025 8

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22. On the tenancy relationship, Agreement dated the record contained the Lease 13 th May 2021, the terms of which have already been considered. Beyond the Lease itself, the Appellants relied on the 1st Respondent’s own admissions concerning payment of rent. During cross-examination, he acknowledged that he paid monthly rent through Homeplus Realtors Limited and that, in BPRT/E1130/2023, he had stated that the monthly rent was Kshs.150,000. He further acknowledged payment of Kshs.5.6 million at the request of the landlord. The Appellants also relied on affidavits and pleadings in which the 1 st Respondent described himself as a tenant and acknowledged rent obligations. 23. Those admissions were material. A court or tribunal is entitled to assess oral testimony against contemporaneous documents and a party’s previous pleadings and affidavits. The Tribunal could not, on the one hand, accept the existence of a landlord-tenant relationship and rent obligations and, on the other, disregard without sufficient explanation the written instrument and documentary material from which that relationship was said to arise. The evidence had to be considered as a whole and not in isolated parts. 24. The same difficulty arises from the Tribunal’s treatment of the condition of the premises. In the impugned Judgment, the Tribunal recorded competing evidence as to whether the property was undeveloped when the 1st Respondent took possession. It referred to the evidence of Salim Mohammed Lavin, who stated that some portions had existing developments while another portion was vacant and subsequently developed into a car wash. The Appellants had also placed before the Tribunal photographic and documentary material said to demonstrate that structures already existed on portions of the premises. The Tribunal was therefore required to distinguish between structures ELCLA NO. E032 OF 2025 9

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which pre-existed the tenancy and those subsequently put up by the 1st Respondent before attributing the entirety of the developments to him. 25. Of greater consequence was the Tribunal’s treatment of the alleged investment in the premises. The Tribunal investments had been made by the expressly noted that 1 st Respondent but that “the exact value of these investments remains uncertain.” It further recorded a claim by the 1st Respondent that he had invested approximately Kshs.26,000,000, but the evidence before it did not establish the precise value of the structures or the expenditure attributable to them. 26. Sections 107, 108 and 109 of the Evidence Act place the burden of proving a fact upon the party who asserts it. Where the 1st Respondent sought relief founded upon expenditure allegedly incurred in constructing or improving the premises, it was incumbent upon him to establish, by credible evidence, the nature of the developments, the expenditure incurred and the basis upon which compensation or set-off was claimed. The existence of structures on the premises, without sufficient evidence as to their ownership, cost and value, could not by itself establish the monetary entitlement ultimately contemplated by the Tribunal. 27. The Tribunal nevertheless proceeded to order a joint valuation of the suit premises within thirty days, both to ascertain the ground rent payable on the structures and to establish the monetary value of the structures erected. It further directed that the value of the property be converted into current and future ground rent until the tenant exhausted the assessed value of the building, or alternatively that the tenant vacate upon the landlord paying the valuation amount. ELCLA NO. E032 OF 2025 10

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28. In my view, those orders reveal the evidential difficulty in the Tribunal’s determination. The valuation contemplated by the orders was not intended merely to quantify a right which had already been proved; it was required to establish facts which were themselves necessary before liability and entitlement could be determined. The Tribunal had not established, on the evidence before it, the exact structures attributable to the 1st Respondent, their value, the expenditure incurred in constructing them, or the legal basis upon which that value was to be converted into rent. Those essential matters could not properly be left to a future valuation after judgment. 29. A final determination must resolve the controversy presented to the adjudicating body on the evidence tendered before it. It cannot leave the existence or extent of a substantive entitlement to be established by evidence to be generated after judgment. In the absence of sufficient proof of the value of the alleged developments, the orders directing a future valuation and thereafter tying rent or compensation to whatever figure might subsequently emerge were contingent upon matters which had not been proved at the hearing. 30. I therefore find that the Tribunal did not properly evaluate the totality of the evidence before it and that the consequential orders relating to valuation, conversion of the value of the structures into rent and compensation were not supported by sufficient evidence on record. The second issue is accordingly determined in favour of the Appellants. FINAL DISPOSITION ELCLA NO. E032 OF 2025 11

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31. In the result, having found that the tenancy did not constitute a controlled tenancy within the meaning of section 2(1) of Cap. 301 and that the Tribunal consequently lacked jurisdiction to determine the substantive dispute, and further having found that the impugned findings and consequential orders were not supported by the evidence before the Tribunal, the appeal is merited. 32. Accordingly, I make the following orders: a) The appeal is hereby allowed. b) The Judgment of the Business Premises Rent Tribunal delivered on 20th January 2025 in BPRT/E095/2024 as consolidated with BPRT/E1130/2023, together with all consequential orders arising therefrom, is hereby set aside. c) BPRT/E095/2024 and BPRT/E1130/2023 are hereby struck out for want of jurisdiction. d) The Appellants shall have the costs of the proceedings before the Tribunal and of this appeal. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on 24th day of September, 2026. ELCLA NO. E032 OF 2025 12

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MOHAMMED N. KULLOW JUDGE Judgement delivered in the presence of: Ms. Musalla N/A Ms. Mwangi ELCLA NO. E032 OF 2025 for the Appellants for the Respondents Court Assistant 13

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