Amon Obiero Rajab & 1 other v Masega Nyaboga

following a road reserve notice, that the tenancy was not terminated, and prayed for dismissal of the suit with costs. 3. At the conclusion of the trial, the trial court, in a judgment delivered on 22nd October 2025, found that the dispute arose from a controlled tenancy and that jurisdiction lay with the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The court consequently declined jurisdiction and dismissed the suit with costs. 4. Dissatisfied with that decision, the Appellants lodged the present appeal vide a Memorandum of Appeal dated 18 th December 2025, raising seven grounds of appeal. In essence, they fault the trial court for declining jurisdiction, finding that the dispute fell within the jurisdiction of the Business Premises Rent Tribunal, and failing to determine their claims arising from the alleged unlawful eviction and the losses said to have been suffered. 5. Pursuant to the directions of the Court, the appeal was canvassed by way of written submissions. The Appellants, through Mosomi & Company Advocates, filed their written submissions dated 18th April 2026, while the Respondent, through Ochoki & Company Advocates, filed written submissions dated 05th May 2026 in opposition. The Court has carefully considered the record of appeal, the

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judgment of the trial court, the memorandum of appeal and the rival submissions. 6. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the pleadings, the evidence and the law that were before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that fact. This principle was settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. 7. Having considered the record of appeal and the rival written submissions filed by counsel for the respective parties, I find that the following issues arise for determination: 1) Whether the trial court erred in law and fact in holding that it lacked jurisdiction to hear and determine the suit 2) Whether the appeal is merited for the grant of the orders sought by the Appellants; and 3) Who bears the costs of the appeal. 8. The starting point is the question of jurisdiction. It is now settled that jurisdiction is fundamental, for without it a court has no power to entertain or determine a dispute. In Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd

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[1989] KECA 48 (KLR), the Court of Appeal held that jurisdiction is everything and that a court must down its tools the moment it forms the view that it lacks jurisdiction. The Supreme Court reaffirmed this principle in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), where it held that a court's jurisdiction flows from the Constitution or statute and cannot be expanded through judicial craft. 9. Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, defines a "controlled tenancy" as a tenancy of a shop, hotel or catering establishment which has either not been reduced into writing, or which, though reduced into writing, is for a period not exceeding five years, or contains provisions for termination otherwise than for breach of covenant within five years of its commencement, or relates to premises of a class specified under subsection (2) of that section. 10. The tenancy in issue was initially reduced into writing by an agreement dated 4th September 2016. However, that agreement was neither produced before the trial court nor included in the record of appeal. The evidence available to this Court shows that the Appellants occupied the premises as monthly tenants at KES 10,000 per month and, from January 2020, paid rent in six-monthly instalments of KES 60,000. The

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issue for determination is whether, on that evidence, the learned trial magistrate correctly held that the dispute fell within the jurisdiction of the Business Premises Rent Tribunal. 11. Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act defines a controlled tenancy as a tenancy of a shop, hotel or catering establishment which has not been reduced into writing or which, though reduced into writing, is for a period not exceeding five years, contains provision for termination otherwise than for breach of covenant within five years of its commencement, or relates to premises of a class specified under subsection (2). The definition is disjunctive, with a tenancy falling within the Act if it satisfies any one of the prescribed criteria. 12. In the present case, the record contains no evidence as to the duration or terms of the written agreement executed on 4th September 2016, nor is there evidence that the tenancy fell within any of the classes excluded under section 2(2) of the Act or any other statutory exemption. The only evidence before the Court relates to the parties' occupation of business premises on a monthly rental arrangement and the subsequent payment of rent in six-monthly instalments. It is against that evidential background that the question of jurisdiction must be considered.

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13. The Appellants contend that the learned trial magistrate erred in declining jurisdiction because, by the time the suit was instituted, the landlord and tenant relationship had already come to an end. They argue that what remained was a claim for refund of unutilised rent, compensation for improvements allegedly carried out on the premises and damages arising from the alleged unlawful eviction, matters which, in their view, fell within the jurisdiction of the ordinary courts. In support of that position, they relied on Republic v Business Premises Rent Tribunal & another Ex parte Albert Kigera Karume [2015] KEHC 6921 (KLR) in which the Court discussed the scope of the Tribunal's jurisdiction under section 12 of the Act with reference to Re Hebtulla Properties Ltd [1979] KEHC 39 (KLR). 14. The question, however, is not merely whether the tenancy had come to an end but whether the claims presented before the trial court were of a nature that the Act reserves for determination by the Business Premises Rent Tribunal. Jurisdiction must therefore be determined from the statutory mandate conferred upon the Tribunal and the reliefs sought in the plaint. 15. Section 12(1)(l) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act expressly empowers the Tribunal to award compensation for loss incurred by a

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tenant upon the termination of a controlled tenancy, including compensation for goodwill and improvements carried out with the landlord's consent. The statute therefore contemplates that disputes arising from the termination of a controlled tenancy may remain within the Tribunal's jurisdiction notwithstanding that the tenancy itself has ended. 16. of The reliefs sought by the Appellants comprised a refund unutilised rent, special damages for improvements allegedly destroyed, and general damages for unlawful eviction and loss of business. Those claims did not arise independently of the tenancy. Rather, each was founded upon rights and obligations flowing directly from the landlord and tenant relationship and the manner in which that relationship came to an end. Whether the Respondent lawfully terminated the tenancy and whether the Appellants are entitled to compensation are questions that necessarily require the application of the provisions of Cap. 301. 17. The Respondent's position was that the parties mutually agreed that the Appellants would temporarily vacate the premises to facilitate renovations following the County Government's notice and that there was no unlawful eviction. Whether that version ultimately prevails is not the issue before this Court. The issue is whether the dispute, viewed

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from the pleadings and the reliefs sought, falls within the jurisdiction conferred by the Act. 18. The authorities relied upon by the Appellants do not assist their case. In Serem v Bett, the court was concerned with a tenancy relationship that had fundamentally ceased through frustration, such that the dispute no longer concerned rights governed by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. In the present appeal, Appellants, however, namely the every relief sought by refund of unutilised the rent, compensation for improvements allegedly made to the premises, and damages for unlawful eviction and loss of business, arises directly from the alleged termination of what the trial court found to be a controlled tenancy. Those claims are founded on rights and obligations created under the landlord and tenant relationship and fall within the jurisdiction conferred upon the Business Premises Rent Tribunal by section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. 19. I am therefore satisfied that the learned trial magistrate correctly directed himself to the substance of the dispute rather than the manner in which the reliefs were framed. The mere fact that the tenancy had allegedly come to an end did

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not, without more, remove the dispute from the jurisdiction of the Business Premises Rent Tribunal. 20. It therefore follows that the learned trial magistrate correctly found that the dispute fell within the jurisdiction of the Business Premises Rent Tribunal and consequently declined to entertain the suit. Having reached that conclusion, the trial court could not properly proceed to determine the merits of the Appellants' claims, jurisdiction being the indispensable foundation upon which the exercise of judicial authority rests. 21. Having upheld the trial court's finding on jurisdiction, I find it unnecessary to consider the remaining grounds of appeal, as they concern the merits of the Appellants' claims, which were not amenable to determination before the trial court. 22. Costs follow the event. As the Respondent has successfully defended the appeal, he is entitled to the costs of the appeal. 23. For the foregoing reasons, I find no merit in this appeal. The upshot is as follows: 1) The appeal is hereby dismissed. 2) The Judgment of the trial court delivered on 22 nd October 2025 is hereby upheld.

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3) The Respondent shall have the costs of this appeal. DELIVERED AT NYAMIRA THIS July 2026 30th DAY OF WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant For Appellants - Hilda - Ms. Mosomi for Mosomi & Company Advocates For Respondent Advocates - Mr. Ochoki for Ochoki & Co.

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