(Being an appeal from the judgment and Order of the business premises rent tribunal at Nairobi in business premises rent tribunal reference number delivered by Hon. Gakui Chege and Hon. Joyce Osodo, respectively the chairperson and member of the Business Premises Tribunal, delivered on 12 th September 2025).
1.The Appeal before this court arose over commercial stalls and offices situated on Land Reference No. 209/1951, located at the junction of Racecourse Road and River Road, Nairobi, a property owned by The General of the Salvation Army, Registered Trustees (the 1st Respondent). The 1st Respondent originally granted a lease to Funan Construction Company Ltd, under which the Appellants operated various commercial businesses as sub-tenants under controlled tenancy principle.
2.The lease expired on 30th September 2023. Effective 1 st October 2023, the 1st Respondent granted a new lease to Funan Consolidated Company Ltd (the 3rd Respondent), which in turn retained Picturesque Properties Ltd (the 2nd Respondent) to manage the premises and collect rent on its behalf. The 1 st respondent issued notices of lease expiry in July and September 2023, and a stakeholder meeting was convened on 7th August 2023 to inform the tenants of the incoming master leaseholder and the retention of the managing agent(2nd respondent).
3.A conflict emerged when the Appellants asserted that upon expiry of the original lease, they automatically became direct tenants of the 1st Respondent under Section 5 of the Landlord and Tenant Act (Cap 301). They alleged that the 2nd and 3rd Respondents unlawfully took over management, altered tenancy terms, and demanded new lease agreements, increased rent, and substantial goodwill payments, specifically Kshs 800,000/- for ground floor stalls and Kshs 300,000/- for upper floor stalls, under threat of eviction. Citing uncertainty over management legitimacy, the Appellants withheld rent, staged a peaceful demonstration in December 2023, and sought to deposit their rent with the Tribunal. The Appellants prayed for the appeal to be allowed with costs
4.In response, the 1st Respondent maintained that no direct landlord-tenant relationship existed between the Appellants and self but recognized the 2 nd respondent as managing agent and 3 rd respondent as landlord of the Appellants. It prayed for the appeal to be dismissed with costs.
5.The 2nd and 3rd Respondents contended that they are the legitimate Managing Agent and landlord of the Appellants respectively, that any unauthorized goodwill was demanded. They urged that the Appellants had accrued substantial rent arrears while unlawfully subletting stalls to third parties, noting that previous applications filed by the Appellants, including BPRT/E070/2023, had been struck out with costs.
6.Upon admission of the appeal for hearing on 25th May 2026 the parties by consent agreed to dispose of the appeal by way of written submissions which was complied with though belatedly by the 2 and 3 rd Respondents complied.
7.The Appellants in their grounds of appeal contended that the tribunal erred in law in failing to find and hold that the appellants are tenants of the 1 st Respondent upon expiry of lease of the Head Tenant .further that the 2 nd and 3 rd respondents are not legally recognized managing agent and landlord of the Appellants .They urged that the tribunal erred in finding that the Appellants failed to prove alteration of the terms of lease by 3 rd Respondent thereby misdirected itself in dismissing the complaint by the Appellants . The Appellants urged that the tribunal disregarded material issues raised in their written submissions in dismissing their complaint. They urged that the tribunal issued adverse orders against the Appellants by issuing declarations not called for thereby rendering the appeal meritorious. They prayed for setting aside of the ruling /orders of the tribunal dated 12.9.2025 in its entirety with costs to the appellants. Further that the appeal be allowed with costs to the appellants.
8.The 1 st Respondent contended that no direct relationship existed between the Appellants and self as control and management of Salvation Army Complex reverted to the 3rd Respondent under a valid lease agreement, placing all tenant affairs under the management and control of 2nd and 3rd Respondents. The 1st Respondent cited Section 23 of the Land Act 2012 and the judicial precedents of Chelulei & another v Zaya Properties Limited [2026] KEHC 7478, Kenya Airways Limited v Satwant Singh Flora [2013] eKLR, and Mistry Amar Singh v Serwano Kulubya [1963] EA 408 , which establish the principle that a party in breach of a contractual agreement cannot subsequently seek protection under its terms. The 1 st respondent submitted that the Appellants consistently breached their obligations by failing to deposit rent with the 3rd Respondent as ordered by the Tribunal. The 1 st respondent urged the court to find the appeal not merited and dismiss it appeal with costs.
9.The 2 nd and 3 rd Respondents filed their written submissions dated 9.8.2026 urging the court to dismiss the appeal as they are legally recognized management agent and landlord of the Appellants who have defaulted in payment of monthly rents as directed by the tribunal hence complied with the provisions of cap 301 laws of Kenya upon taking over control of the premises.
10.Upon considering the Memorandum, Record of Appeal, Written Submission by the parties, decided cases and the trial Court’s record, the following issues arise for determination: -
a) Whether there existed a tenant- landlord relationship between the 1 st Respondent and Appellants.
b) Whether there existed a Tenant - landlord relationship between the Appellants and 3 rd Respondent
c) Whether duration of notice issued to the Appellant by Respondent was compliant with the legal provisions of the Act.
d) Whether the tribunal erred in law and fact in granting the orders dated 12.9.2025 against the Appellants.
e) Who should bear the cost of appeal?
11. This Court having been called upon to sit as the first Appellate court is guided by the principles set in the case of Selle and Another vs. Associated Motorboat Company Ltd & Others, [1968] EA 123 , where Sir Clement De Lestang, stated: -
“(i) An appeal from the High Court is by way of a re-trial and the Court of Appeal is not bound to follow the trial judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally;
(ii) there was no valid reason for interfering with the learned judge’s finding on the facts;
(iii) …”
12.The Court in Mbogo & Another v Shah [1968] EA 93 stated that: -
“(i) in the circumstances the judge exercised correctly his discretion to refuse the Application to set aside the judgement;
(ii) a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice. ”
13.Considering that this court is sitting as the first appellate court never had the chance to hear the evidence of witnesses from inception or advantage to look at their demeanor can only interfere with judgment of the learned member of tribunal in instances where the judge is satisfied that the tribunal misdirected itself in some matter and as result arrived at a wrong decision or there is a clear manifestation that the court was so wrong in exercise of its discretion that it arrived at a wrong decision and a s a result caused a misjustice .
14.As to Whether A tenant- landlord relationship existed between the 1st Respondent and Appellants, The Appellant contended that they only recognized the 1st Respondent as their Landlord, not the 3 rd Respondent , upon expiry of lease of Head Tenant, The tribunal held as follows: -
“29. On the first issue, the Applicants’ reliance on section 5 of Cap 301 is noted. However, the Tribunal agrees with the Respondents that the provision does not prevent the reversioner from entering into a new lease. Once the 1st Respondent leased the premises to the 3rd Respondent, the Applicants were bound to recognize the 3rd Respondent as their landlord. This position is fortified by the decision in Mistry Amar Singh v Serwano Kulubya [1963] EA 408 where the court stated: “The rights of subtenants are not independent of the head lease. They flow from it, and must be asserted within the framework created by the landlord and the head tenant.
30. Accordingly, the Applicants’ direct claim against the 1st Respondent fails. Their landlord is the 3rd Respondent.
31. On the second issue, the Tribunal notes that the lease and appointment documents are authentic and undisputed. The Applicants cannot deny the 2nd and 3rd Respondents’ authority in light of section 120 of the Evidence Act . In Saheb v Hassanally (supra), the court held that refusal to pay rent to a duly appointed agent is a breach. We adopt this reasoning.
32. On goodwill, the Tribunal finds that no cogent evidence was adduced to prove unlawful demands thereof. In Republic v Chairman BPRT ex parte Nyang’aya (supra), the High Court emphasized strict proof. The Applicants’ allegations remain unsubstantiated.”
15.Section 5 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act stipulates the Effect on sub-tenancies:
1. Where a landlord is himself a tenant, the termination of the landlord’s tenancy shall not of itself terminate a controlled sub-tenancy, but for the purposes of this Act the person entitled to the interest in reversion expectant on the termination of the landlord’s tenancy shall be deemed to be the landlord of the controlled sub- tenancy upon the terms and conditions thereof and subject to the provisions of this Act.
2. Where a landlord gives a tenancy notice to his tenant, he may at the same time give a similar notice to any person to whom the tenant has sub-let the whole or any part of the premises concerned and thereupon the provisions of this Act shall apply to the sub-tenant, and his sub-tenancy, as if he were the tenant of such landlord.
3. Where a landlord, in accordance with the provisions of subsection (2) of this section serves notices on both the tenant and the sub-tenant, the Tribunal may consolidate any references made to it by the tenant and the sub-tenant, and may hear them simultaneously and may make such orders concerning the tenant and the sub-tenant as may be necessary.”
16. It is not disputed that the 1st Respondent initially leased the premises to Funan Construction Company Limited for a period of/over ten years from 1.10.2013, under which the Appellants occupied the premises as sub-tenants. By its letter dated 1.07.2023, Funan Construction Company Limited informed the Appellants that its lease would expire on 30.09.2023 and that the 1st Respondent would communicate regarding the new landlord. The 1st Respondent’ vide its letter dated 1 August 2023 informed Funan Construction Company Limited of the expiry of the lease and introduced Funan Consolidated Company Limited as the proposed new landlord to the Appellants.
17.The 1st Respondent expressly stated that the Head tenant/s lease expired on the 30.9.2023 and upon executing a new lease with 3 rd respondent, 2 nd and 3 rd respondents became the recognized managing agent and landlord of the Appellants respectively. Upon expiry of the lease the tribunal rightly found that the 1 st Respondent was not the landlord of the Appellants.
18.By effluxion of time, the 3 rd Respondent became the legal landlord of the Appellants the moment 1 st respondent executed a lease agreement with 3 rd Respondent hence entitled to Payment of rent by the Appellants through its recognized agent (2 nd respondent). The tribunal rightly found that the 3 rd Respondent is the landlord of the Appellants whereas 2 nd Respondent is the recognized agent of the 3 rd respondent.
19 . As to whether the duration of notice issued to the appellants by 3 rd respondent was compliant with the legal provisions of the land lord and Tenant ( Shops, Hotels and Catering Establishments) Act(cap 301 laws of Kenya), the 3rd Respondent’s case is that it subsequently entered into a five-year lease agreement with the 1st Respondent commencing 1 November 2023.The land lord and tenant( Shops, Hotels and Catering Establishments) Act in Section 4 provides for Termination of and alteration of terms and conditions in controlled tenancy as follows:
1) 1.Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act.
2) 2.A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.
3) 3.A tenant who wishes to obtain a reassessment of the rent of a controlled tenancy or the alteration of any term or condition in, or of any right or service enjoyed by him under, such a tenancy, shall give notice in that behalf to the landlord in the prescribed form.
4) 4.No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein:
i. Provided that—
(i) where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated;
(ii) where the terms and conditions of a controlled tenancy provide for a period of notice exceeding two months, that period shall be substituted for the said period of two months after the receipt of the tenancy notice;
(iii) the parties to the tenancy may agree in writing to any lesser period of notice.
5) 5.A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice.
6) 6.A tenancy notice may be given to the receiving party by delivering it to him personally, or to an adult member of his family, or to any other servant residing within or employed in the premises concerned, or to his employer, or by sending it by prepaid registered post to his last known address, and any such notice shall be deemed to have been given on the date on which it was so delivered, or on the date of the postal receipt given by a person receiving the letter from the postal authorities, as the case may be.”
20.From the foregoing, any notice seeking to alter the terms of a controlled tenancy as in the present case must strictly comply with section 4(2) of the Act and Regulation 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) which prescribes as follows:-
1. A notice under section 4(2) of the Act by a landlord shall be in Form A in the Schedule to these Regulations.
2. A notice under section 4(3) of the Act by a tenant shall be in Form A1 in the Schedule to these Regulations.”
20.It is trite that where a landlord intends to alter any terms , right or service enjoyed by a tenant under a controlled tenancy, the landlord must give the tenant notice in the prescribed form and manner provided for in the act . Compliance with these statutory requirements is mandatory as stated in the case of Manaver N Alibhai T/A Diani Boutique vs South Coast Fitness & Sports Centre as Limited, Civil Appeal No. 203 of 1994 as follows:-
“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”
20.Tuning to the case in point was the notice given to the Appellants vide a letter dated 1.10.2023 taking effect on 5.10.2023 in compliance with the land lord and tenant (Shops, Hotels and Catering Establishments Act( cap 301) and/or valid? The Court in Ann Mwaura & 9 Others V David Wagatua Gitau & 2 Others [2010] KEHC 1596 (KLR) stated that compliance with the contents of the form as prescribed in the act is mandatory as opposed to form the form as follows
“I find no merit in the first limb of this submission. The prescribed form that the Act talks of is not necessarily the actual form that the Government Printer extracted from the Act. The phrase “prescribed form” should be understood to refer to the contents of the form provided in the Act. In the computer age in which we live in I cannot see why one cannot make the format of a given form and use it. As long as the landlord’s notice incorporates the contents of the form in the Act of the notice supposed to be given under Section 4 of the Act that notice is valid. In the circumstances, I find no merit in Mr. Kurgat’s submission on the form of the notice.
As regards the period of notice, I concur with the Court of Appeal holding in the said case of Caledonia Supermarket Ltd Vs Kenya National Examinations Council [2002] 2 EA 357 that “… failure to comply with these mandatory requirements rendered the purported notice(s) null and void and incapable of enforcement.” I, however, find it hard to appreciate its further holding in that case that:-
“Faced with what was clearly an illegal eviction, the Appellant could not seek protection from the Business Premises Tribunal because the notice given being an invalid notice deprived the Tribunal of the power to intervene. In any case the Tribunal has no power to issue an injunction. That left the Appellant with only one course of action. It had to seek redress from the High Court. In the case of Tiwi Beach Hotel Ltd v Julian Ulrike Stamn [1990] 2 KAR 189 where a protected tenant applied to the High Court for an injunction when, as in the present case, she was threatened with an illegal eviction, Kwach JA put the matter beyond dispute when in the course of his judgment he said at page 200:
‘Although Mr. Lakha stressed that both these letters constituted an offer for a lease, in my judgment it is plain beyond argument that they were a demand by a landlord for rent from a tenant in possession. The tenant claimed, quite properly in my view, statutory protection under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and the Appellant, as landlord of the premises was therefore obliged to comply with the statutory procedure under the Act if it was its intention either to terminate the tenancy or alter its terms to the detriment of the Respondent. If the Appellant thought that those letters were notices, I must disabuse it of that notion by stating at once that they were not in the prescribed form and consequently had no effect on the Respondent’s tenancy. For this reason alone the Respondent was entitled to an order restraining the Appellant and the judge was therefore perfectly justified in making the order.’”
With the increase in social and economic regulation by governments and the need for more specialized bodies to implement government policy there has been a vast increase in the establishment of administrative tribunals.The need for specialization and expertise to consider local circumstances as well as the need for the adoption of expeditious, informal, and inexpensive procedures compels the establishment of such bodies by legislation. Section 77(9) of the Kenyan Constitution recognizes this need.”
21.The notice of the proposed alteration of terms of the lease Agreement issued by Picturesque Properties Limited(2 nd respondent) dated 1.10.2023, was in the form of an ordinary letter. The question therefore is whether that departure from the prescribed form affected the substance of the notice. In the case of Fredrick Mutua Mulinge t/a Kitui Uniform –vs- Kitui Teachers Housing Cooperative Society Limited [2017] KEELC the court stated as follows:-
“A single issue which arises for determination in this appeal is whether the tribunal was right in dismissing the appellant’s application for review. The procedure for terminating of a controlled tenancy is provided for under section 4(2) of the Act as follows:- “4. (2) A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.
For a notice seeking termination or variation of a controlled tenancy to be effective, section 4(4) of the Act requires the same to be not less than two months unless parties agree in writing to a lesser notice period.
It is not in dispute that the notice dated 28 th June 2014 issued by the respondent herein gave the appellant 2 days notice of termination of his tenancy as it was to take effect on 1 st July 2014. I am in agreement with the submission by the appellant that by failing to comply with section 4(4) of the Act, the notice of termination dated 28 th June 2014 was defective, null and void for all intents and purposes. This position of the law is now settled as can be seen in the cases which are cited below. In the case of Ann Mwaura & 9 others vs. David Wagatua Gitau & 2 others (2010)eKLR (Maraga J. as he then was ), the court stated as follows:-
“As regards the period of notice, I concur with the Court of Appeal holding in the said case of Caledonia Supermarket Ltd vs Kenya National Examinations Council [2002] 2 EA 357 that “… failure to comply with these mandatory requirements rendered the purported notice(s) null and void and incapable of enforcement.”
In the case of Manaver N. Alibhai t/a Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 , the court stated that: -
“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The
In the case of Narshidas & Company Limited vs. Nyali Air Conditioning and Refrigeration Services Limited Civil Appeal No. 205 of 1995 the court stated as follows:-
“ The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant and the notice must also specify the grounds upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice...The notice to quit purportedly relied on by the defendant in this appeal is by no means a notice which in any way complies with Form A as prescribed in the Act. Such notice can only have been given pursuant to the provisions of section 7(1)(g) of the Act. The notice to quit given or issued by the defendant was clearly void and had no effect in law on the plaintiff’s tenancy and the plaintiff was under no duty, legal or otherwise to react to it.”
In Lall vs. Jeypee Investments Ltd Nairobi HCCA No. 120 of 1971 (1972) EA 512 the court stated as follows:-
“The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of tenants for the purpose of affording them the protection specified by its provisions against ravages of predatory landlords. Such protection can only be fully enjoyed if the provisions of Act are observed to the letter otherwise the clearly indicated intention of the legislature would be defeated. In order to be effective in this fashion the Act must be construed strictly no matter how harsh the result... The Landlord and Tenant Act laid down a code which Parliament intended to be followed and if a landlord does not give notice of termination as prescribed, the notice will be ineffectual. This may seem a technical and unmeritorious defence, but there is no doubt that the court has no power to dispense with these time limits if the defendant chooses to object at the proper time. This is an Act which requires, insofar as the giving of the notice is concerned, absolute and complete not merely substantive compliance with its peremptory provisions.”
It is clear from the foregoing authorities that the tenancy notice dated 28 th June 2014 was null and void for failing to give the appellant two months’ notice as required under the Act and as such was of no legal effect. Life could not be breathed into the defective notice by the letter dated 1 st July 2014 through which the respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided for under the Act. In view of the foregoing findings, the appellant’s reference dated 31 st July 2104 which was filed under section 12(4) of the Act and Notice of Motion of the same date were properly before the court and should have been allowed by the tribunal. The appellant was under no obligation to respond to a defective notice. The tribunal’s finding that the said defective tenancy notice took effect under section 10 of the Act owing to the appellant’s failure to respond to the same was in the circumstances erroneous. As I have stated above, a defective notice is a nullity and of no effect. See, the holding in the case of Narshidas & Company Limited vs. Nyali Air Conditioning and Refrigeration Services Limited(supra) .
The tribunal having dismissed the appellant’s application and reference under section 12(4) of the Act aforesaid, the appellant had a right under the Act to seek a review of the tribunal’s order or to appeal against the same. The appellant chose the former remedy. I am of the view that the appellant had put good grounds before the tribunal which should have justified the review of the tribunal’s order of 23 rd January 2015. The decision of the tribunal had an error on the face of it. The finding by the tribunal that the appellant could file a reference to a defective notice was an error on the face of the record. The finding by the tribunal that the defective notice could be amended by a letter which was not addressed to the appellant was another error on the face of the record. The same applies to the tribunal’s finding that the defective notice had taken effect. I am also of the view that no good reason was given by the tribunal for refusing to grant the appellant’s alternative prayer for leave to file a reference out of time having held albeit wrongfully that the notice by the respondent was valid.”
21.The prescribed form of notice sets out specific particulars that must be included, including: the alterations proposed by the landlord, grounds upon which the alterations are sought and a requirement that the tenant, within one month of receipt of the notice, notify the landlord in writing whether or not the tenant agrees to comply with the notice. None of these mandatory particulars were provided for in the impugned notice dated 1.10.2023.
22.Further, the notice/letter dated 1.10.2023 stipulated 5.10.2023 as the date for compliance, notwithstanding that the statutory period of two months was yet to lapse. The notice also referred to matters “as previously communicated” , yet no evidence was adduced to demonstrate that such communication was made in a manner satisfying the statutory requirements of section 4 of the landlord and tenant (Shops, Hotels and Catering Establishments) Act cap 301 laws of Kenya. The burden of proof rested upon the Respondents, having asserted that a valid statutory notice had been issued, to establish that the notice complied with the
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1.The Appeal before this court arose over commercial stalls and offices situated on Land Reference No. 209/1951, located at the junction of Racecourse Road and River Road, Nairobi, a property owned by The General of the Salvation Army, Registered Trustees (the 1st Respondent). The 1st Respondent originally granted a lease to Funan Construction Company Ltd, under which the Appellants operated various commercial businesses as sub-tenants under controlled tenancy principle.
2.The lease expired on 30th September 2023. Effective 1 st October 2023, the 1st Respondent granted a new lease to Funan Consolidated Company Ltd (the 3rd Respondent), which in turn retained Picturesque Properties Ltd (the 2nd Respondent) to manage the premises and collect rent on its behalf. The 1 st respondent issued notices of lease expiry in July and September 2023, and a stakeholder meeting was convened on 7th August 2023 to inform the tenants of the incoming master leaseholder and the retention of the managing agent(2nd respondent).
3.A conflict emerged when the Appellants asserted that upon expiry of the original lease, they automatically became direct tenants of the 1st Respondent under Section 5 of the Landlord and Tenant Act (Cap 301). They alleged that the 2nd and 3rd Respondents unlawfully took over management, altered tenancy terms, and demanded new lease agreements, increased rent, and substantial goodwill payments, specifically Kshs 800,000/- for ground floor stalls and Kshs 300,000/- for upper floor stalls, under threat of eviction. Citing uncertainty over management legitimacy, the Appellants withheld rent, staged a peaceful demonstration in December 2023, and sought to deposit their rent with the Tribunal. The Appellants prayed for the appeal to be allowed with costs
4.In response, the 1st Respondent maintained that no direct landlord-tenant relationship existed between the Appellants and self but recognized the 2 nd respondent as managing agent and 3 rd respondent as landlord of the Appellants. It prayed for the appeal to be dismissed with costs.
5.The 2nd and 3rd Respondents contended that they are the legitimate Managing Agent and landlord of the Appellants respectively, that any unauthorized goodwill was demanded. They urged that the Appellants had accrued substantial rent arrears while unlawfully subletting stalls to third parties, noting that previous applications filed by the Appellants, including BPRT/E070/2023, had been struck out with costs.
6.Upon admission of the appeal for hearing on 25th May 2026 the parties by consent agreed to dispose of the appeal by way of written submissions which was complied with though belatedly by the 2 and 3 rd Respondents complied.
7.The Appellants in their grounds of appeal contended that the tribunal erred in law in failing to find and hold that the appellants are tenants of the 1 st Respondent upon expiry of lease of the Head Tenant .further that the 2 nd and 3 rd respondents are not legally recognized managing agent and landlord of the Appellants .They urged that the tribunal erred in finding that the Appellants failed to prove alteration of the terms of lease by 3 rd Respondent thereby misdirected itself in dismissing the complaint by the Appellants . The Appellants urged that the tribunal disregarded material issues raised in their written submissions in dismissing their complaint. They urged that the tribunal issued adverse orders against the Appellants by issuing declarations not called for thereby rendering the appeal meritorious. They prayed for setting aside of the ruling /orders of the tribunal dated 12.9.2025 in its entirety with costs to the appellants. Further that the appeal be allowed with costs to the appellants.
8.The 1 st Respondent contended that no direct relationship existed between the Appellants and self as control and management of Salvation Army Complex reverted to the 3rd Respondent under a valid lease agreement, placing all tenant affairs under the management and control of 2nd and 3rd Respondents. The 1st Respondent cited Section 23 of the Land Act 2012 and the judicial precedents of Chelulei & another v Zaya Properties Limited [2026] KEHC 7478, Kenya Airways Limited v Satwant Singh Flora [2013] eKLR, and Mistry Amar Singh v Serwano Kulubya [1963] EA 408 , which establish the principle that a party in breach of a contractual agreement cannot subsequently seek protection under its terms. The 1 st respondent submitted that the Appellants consistently breached their obligations by failing to deposit rent with the 3rd Respondent as ordered by the Tribunal. The 1 st respondent urged the court to find the appeal not merited and dismiss it appeal with costs.
9.The 2 nd and 3 rd Respondents filed their written submissions dated 9.8.2026 urging the court to dismiss the appeal as they are legally recognized management agent and landlord of the Appellants who have defaulted in payment of monthly rents as directed by the tribunal hence complied with the provisions of cap 301 laws of Kenya upon taking over control of the premises.
10.Upon considering the Memorandum, Record of Appeal, Written Submission by the parties, decided cases and the trial Court’s record, the following issues arise for determination: -
a) Whether there existed a tenant- landlord relationship between the 1 st Respondent and Appellants.
b) Whether there existed a Tenant - landlord relationship between the Appellants and 3 rd Respondent
c) Whether duration of notice issued to the Appellant by Respondent was compliant with the legal provisions of the Act.
d) Whether the tribunal erred in law and fact in granting the orders dated 12.9.2025 against the Appellants.
e) Who should bear the cost of appeal?
11. This Court having been called upon to sit as the first Appellate court is guided by the principles set in the case of Selle and Another vs. Associated Motorboat Company Ltd & Others, [1968] EA 123 , where Sir Clement De Lestang, stated: -
“(i) An appeal from the High Court is by way of a re-trial and the Court of Appeal is not bound to follow the trial judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally;
(ii) there was no valid reason for interfering with the learned judge’s finding on the facts;
(iii) …”
12.The Court in Mbogo & Another v Shah [1968] EA 93 stated that: -
“(i) in the circumstances the judge exercised correctly his discretion to refuse the Application to set aside the judgement;
(ii) a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice. ”
13.Considering that this court is sitting as the first appellate court never had the chance to hear the evidence of witnesses from inception or advantage to look at their demeanor can only interfere with judgment of the learned member of tribunal in instances where the judge is satisfied that the tribunal misdirected itself in some matter and as result arrived at a wrong decision or there is a clear manifestation that the court was so wrong in exercise of its discretion that it arrived at a wrong decision and a s a result caused a misjustice .
14.As to Whether A tenant- landlord relationship existed between the 1st Respondent and Appellants, The Appellant contended that they only recognized the 1st Respondent as their Landlord, not the 3 rd Respondent , upon expiry of lease of Head Tenant, The tribunal held as follows: -
“29. On the first issue, the Applicants’ reliance on section 5 of Cap 301 is noted. However, the Tribunal agrees with the Respondents that the provision does not prevent the reversioner from entering into a new lease. Once the 1st Respondent leased the premises to the 3rd Respondent, the Applicants were bound to recognize the 3rd Respondent as their landlord. This position is fortified by the decision in Mistry Amar Singh v Serwano Kulubya [1963] EA 408 where the court stated: “The rights of subtenants are not independent of the head lease. They flow from it, and must be asserted within the framework created by the landlord and the head tenant.
30. Accordingly, the Applicants’ direct claim against the 1st Respondent fails. Their landlord is the 3rd Respondent.
31. On the second issue, the Tribunal notes that the lease and appointment documents are authentic and undisputed. The Applicants cannot deny the 2nd and 3rd Respondents’ authority in light of section 120 of the Evidence Act . In Saheb v Hassanally (supra), the court held that refusal to pay rent to a duly appointed agent is a breach. We adopt this reasoning.
32. On goodwill, the Tribunal finds that no cogent evidence was adduced to prove unlawful demands thereof. In Republic v Chairman BPRT ex parte Nyang’aya (supra), the High Court emphasized strict proof. The Applicants’ allegations remain unsubstantiated.”
15.Section 5 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act stipulates the Effect on sub-tenancies:
1. Where a landlord is himself a tenant, the termination of the landlord’s tenancy shall not of itself terminate a controlled sub-tenancy, but for the purposes of this Act the person entitled to the interest in reversion expectant on the termination of the landlord’s tenancy shall be deemed to be the landlord of the controlled sub- tenancy upon the terms and conditions thereof and subject to the provisions of this Act.
2. Where a landlord gives a tenancy notice to his tenant, he may at the same time give a similar notice to any person to whom the tenant has sub-let the whole or any part of the premises concerned and thereupon the provisions of this Act shall apply to the sub-tenant, and his sub-tenancy, as if he were the tenant of such landlord.
3. Where a landlord, in accordance with the provisions of subsection (2) of this section serves notices on both the tenant and the sub-tenant, the Tribunal may consolidate any references made to it by the tenant and the sub-tenant, and may hear them simultaneously and may make such orders concerning the tenant and the sub-tenant as may be necessary.”
16. It is not disputed that the 1st Respondent initially leased the premises to Funan Construction Company Limited for a period of/over ten years from 1.10.2013, under which the Appellants occupied the premises as sub-tenants. By its letter dated 1.07.2023, Funan Construction Company Limited informed the Appellants that its lease would expire on 30.09.2023 and that the 1st Respondent would communicate regarding the new landlord. The 1st Respondent’ vide its letter dated 1 August 2023 informed Funan Construction Company Limited of the expiry of the lease and introduced Funan Consolidated Company Limited as the proposed new landlord to the Appellants.
17.The 1st Respondent expressly stated that the Head tenant/s lease expired on the 30.9.2023 and upon executing a new lease with 3 rd respondent, 2 nd and 3 rd respondents became the recognized managing agent and landlord of the Appellants respectively. Upon expiry of the lease the tribunal rightly found that the 1 st Respondent was not the landlord of the Appellants.
18.By effluxion of time, the 3 rd Respondent became the legal landlord of the Appellants the moment 1 st respondent executed a lease agreement with 3 rd Respondent hence entitled to Payment of rent by the Appellants through its recognized agent (2 nd respondent). The tribunal rightly found that the 3 rd Respondent is the landlord of the Appellants whereas 2 nd Respondent is the recognized agent of the 3 rd respondent.
19 . As to whether the duration of notice issued to the appellants by 3 rd respondent was compliant with the legal provisions of the land lord and Tenant ( Shops, Hotels and Catering Establishments) Act(cap 301 laws of Kenya), the 3rd Respondent’s case is that it subsequently entered into a five-year lease agreement with the 1st Respondent commencing 1 November 2023.The land lord and tenant( Shops, Hotels and Catering Establishments) Act in Section 4 provides for Termination of and alteration of terms and conditions in controlled tenancy as follows:
1) 1.Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act.
2) 2.A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.
3) 3.A tenant who wishes to obtain a reassessment of the rent of a controlled tenancy or the alteration of any term or condition in, or of any right or service enjoyed by him under, such a tenancy, shall give notice in that behalf to the landlord in the prescribed form.
4) 4.No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein:
i. Provided that—
(i) where notice is given of the termination of a controlled tenancy, the date of termination shall not be earlier than the earliest date on which, but for the provisions of this Act, the tenancy would have, or could have been, terminated;
(ii) where the terms and conditions of a controlled tenancy provide for a period of notice exceeding two months, that period shall be substituted for the said period of two months after the receipt of the tenancy notice;
(iii) the parties to the tenancy may agree in writing to any lesser period of notice.
5) 5.A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing, within one month after the date of receipt of the notice, whether or not he agrees to comply with the notice.
6) 6.A tenancy notice may be given to the receiving party by delivering it to him personally, or to an adult member of his family, or to any other servant residing within or employed in the premises concerned, or to his employer, or by sending it by prepaid registered post to his last known address, and any such notice shall be deemed to have been given on the date on which it was so delivered, or on the date of the postal receipt given by a person receiving the letter from the postal authorities, as the case may be.”
20.From the foregoing, any notice seeking to alter the terms of a controlled tenancy as in the present case must strictly comply with section 4(2) of the Act and Regulation 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) which prescribes as follows:-
1. A notice under section 4(2) of the Act by a landlord shall be in Form A in the Schedule to these Regulations.
2. A notice under section 4(3) of the Act by a tenant shall be in Form A1 in the Schedule to these Regulations.”
20.It is trite that where a landlord intends to alter any terms , right or service enjoyed by a tenant under a controlled tenancy, the landlord must give the tenant notice in the prescribed form and manner provided for in the act . Compliance with these statutory requirements is mandatory as stated in the case of Manaver N Alibhai T/A Diani Boutique vs South Coast Fitness & Sports Centre as Limited, Civil Appeal No. 203 of 1994 as follows:-
“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the ground upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”
20.Tuning to the case in point was the notice given to the Appellants vide a letter dated 1.10.2023 taking effect on 5.10.2023 in compliance with the land lord and tenant (Shops, Hotels and Catering Establishments Act( cap 301) and/or valid? The Court in Ann Mwaura & 9 Others V David Wagatua Gitau & 2 Others [2010] KEHC 1596 (KLR) stated that compliance with the contents of the form as prescribed in the act is mandatory as opposed to form the form as follows
“I find no merit in the first limb of this submission. The prescribed form that the Act talks of is not necessarily the actual form that the Government Printer extracted from the Act. The phrase “prescribed form” should be understood to refer to the contents of the form provided in the Act. In the computer age in which we live in I cannot see why one cannot make the format of a given form and use it. As long as the landlord’s notice incorporates the contents of the form in the Act of the notice supposed to be given under Section 4 of the Act that notice is valid. In the circumstances, I find no merit in Mr. Kurgat’s submission on the form of the notice.
As regards the period of notice, I concur with the Court of Appeal holding in the said case of Caledonia Supermarket Ltd Vs Kenya National Examinations Council [2002] 2 EA 357 that “… failure to comply with these mandatory requirements rendered the purported notice(s) null and void and incapable of enforcement.” I, however, find it hard to appreciate its further holding in that case that:-
“Faced with what was clearly an illegal eviction, the Appellant could not seek protection from the Business Premises Tribunal because the notice given being an invalid notice deprived the Tribunal of the power to intervene. In any case the Tribunal has no power to issue an injunction. That left the Appellant with only one course of action. It had to seek redress from the High Court. In the case of Tiwi Beach Hotel Ltd v Julian Ulrike Stamn [1990] 2 KAR 189 where a protected tenant applied to the High Court for an injunction when, as in the present case, she was threatened with an illegal eviction, Kwach JA put the matter beyond dispute when in the course of his judgment he said at page 200:
‘Although Mr. Lakha stressed that both these letters constituted an offer for a lease, in my judgment it is plain beyond argument that they were a demand by a landlord for rent from a tenant in possession. The tenant claimed, quite properly in my view, statutory protection under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and the Appellant, as landlord of the premises was therefore obliged to comply with the statutory procedure under the Act if it was its intention either to terminate the tenancy or alter its terms to the detriment of the Respondent. If the Appellant thought that those letters were notices, I must disabuse it of that notion by stating at once that they were not in the prescribed form and consequently had no effect on the Respondent’s tenancy. For this reason alone the Respondent was entitled to an order restraining the Appellant and the judge was therefore perfectly justified in making the order.’”
With the increase in social and economic regulation by governments and the need for more specialized bodies to implement government policy there has been a vast increase in the establishment of administrative tribunals.The need for specialization and expertise to consider local circumstances as well as the need for the adoption of expeditious, informal, and inexpensive procedures compels the establishment of such bodies by legislation. Section 77(9) of the Kenyan Constitution recognizes this need.”
21.The notice of the proposed alteration of terms of the lease Agreement issued by Picturesque Properties Limited(2 nd respondent) dated 1.10.2023, was in the form of an ordinary letter. The question therefore is whether that departure from the prescribed form affected the substance of the notice. In the case of Fredrick Mutua Mulinge t/a Kitui Uniform –vs- Kitui Teachers Housing Cooperative Society Limited [2017] KEELC the court stated as follows:-
“A single issue which arises for determination in this appeal is whether the tribunal was right in dismissing the appellant’s application for review. The procedure for terminating of a controlled tenancy is provided for under section 4(2) of the Act as follows:- “4. (2) A landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under such a tenancy, shall give notice in that behalf to the tenant in the prescribed form.
For a notice seeking termination or variation of a controlled tenancy to be effective, section 4(4) of the Act requires the same to be not less than two months unless parties agree in writing to a lesser notice period.
It is not in dispute that the notice dated 28 th June 2014 issued by the respondent herein gave the appellant 2 days notice of termination of his tenancy as it was to take effect on 1 st July 2014. I am in agreement with the submission by the appellant that by failing to comply with section 4(4) of the Act, the notice of termination dated 28 th June 2014 was defective, null and void for all intents and purposes. This position of the law is now settled as can be seen in the cases which are cited below. In the case of Ann Mwaura & 9 others vs. David Wagatua Gitau & 2 others (2010)eKLR (Maraga J. as he then was ), the court stated as follows:-
“As regards the period of notice, I concur with the Court of Appeal holding in the said case of Caledonia Supermarket Ltd vs Kenya National Examinations Council [2002] 2 EA 357 that “… failure to comply with these mandatory requirements rendered the purported notice(s) null and void and incapable of enforcement.”
In the case of Manaver N. Alibhai t/a Diani Boutique vs. South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 , the court stated that: -
“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The
In the case of Narshidas & Company Limited vs. Nyali Air Conditioning and Refrigeration Services Limited Civil Appeal No. 205 of 1995 the court stated as follows:-
“ The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant and the notice must also specify the grounds upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice...The notice to quit purportedly relied on by the defendant in this appeal is by no means a notice which in any way complies with Form A as prescribed in the Act. Such notice can only have been given pursuant to the provisions of section 7(1)(g) of the Act. The notice to quit given or issued by the defendant was clearly void and had no effect in law on the plaintiff’s tenancy and the plaintiff was under no duty, legal or otherwise to react to it.”
In Lall vs. Jeypee Investments Ltd Nairobi HCCA No. 120 of 1971 (1972) EA 512 the court stated as follows:-
“The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is an especially enacted piece of legislation which creates a privileged class of tenants for the purpose of affording them the protection specified by its provisions against ravages of predatory landlords. Such protection can only be fully enjoyed if the provisions of Act are observed to the letter otherwise the clearly indicated intention of the legislature would be defeated. In order to be effective in this fashion the Act must be construed strictly no matter how harsh the result... The Landlord and Tenant Act laid down a code which Parliament intended to be followed and if a landlord does not give notice of termination as prescribed, the notice will be ineffectual. This may seem a technical and unmeritorious defence, but there is no doubt that the court has no power to dispense with these time limits if the defendant chooses to object at the proper time. This is an Act which requires, insofar as the giving of the notice is concerned, absolute and complete not merely substantive compliance with its peremptory provisions.”
It is clear from the foregoing authorities that the tenancy notice dated 28 th June 2014 was null and void for failing to give the appellant two months’ notice as required under the Act and as such was of no legal effect. Life could not be breathed into the defective notice by the letter dated 1 st July 2014 through which the respondent purported to amend the effective date of the notice. The letter was not a notice in the prescribed form provided for under the Act. In view of the foregoing findings, the appellant’s reference dated 31 st July 2104 which was filed under section 12(4) of the Act and Notice of Motion of the same date were properly before the court and should have been allowed by the tribunal. The appellant was under no obligation to respond to a defective notice. The tribunal’s finding that the said defective tenancy notice took effect under section 10 of the Act owing to the appellant’s failure to respond to the same was in the circumstances erroneous. As I have stated above, a defective notice is a nullity and of no effect. See, the holding in the case of Narshidas & Company Limited vs. Nyali Air Conditioning and Refrigeration Services Limited(supra) .
The tribunal having dismissed the appellant’s application and reference under section 12(4) of the Act aforesaid, the appellant had a right under the Act to seek a review of the tribunal’s order or to appeal against the same. The appellant chose the former remedy. I am of the view that the appellant had put good grounds before the tribunal which should have justified the review of the tribunal’s order of 23 rd January 2015. The decision of the tribunal had an error on the face of it. The finding by the tribunal that the appellant could file a reference to a defective notice was an error on the face of the record. The finding by the tribunal that the defective notice could be amended by a letter which was not addressed to the appellant was another error on the face of the record. The same applies to the tribunal’s finding that the defective notice had taken effect. I am also of the view that no good reason was given by the tribunal for refusing to grant the appellant’s alternative prayer for leave to file a reference out of time having held albeit wrongfully that the notice by the respondent was valid.”
21.The prescribed form of notice sets out specific particulars that must be included, including: the alterations proposed by the landlord, grounds upon which the alterations are sought and a requirement that the tenant, within one month of receipt of the notice, notify the landlord in writing whether or not the tenant agrees to comply with the notice. None of these mandatory particulars were provided for in the impugned notice dated 1.10.2023.
22.Further, the notice/letter dated 1.10.2023 stipulated 5.10.2023 as the date for compliance, notwithstanding that the statutory period of two months was yet to lapse. The notice also referred to matters “as previously communicated” , yet no evidence was adduced to demonstrate that such communication was made in a manner satisfying the statutory requirements of section 4 of the landlord and tenant (Shops, Hotels and Catering Establishments) Act cap 301 laws of Kenya. The burden of proof rested upon the Respondents, having asserted that a valid statutory notice had been issued, to establish that the notice complied with the
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