A: Introduction
1. Before this Court is an appeal arising from the Judgment and Order of Hon. Gakuhi Chege (the chairperson of the Business Premises Tribunal) in BPRT NO. E1057 of 2024 consolidated with E1058 & E1059 of 2024 delivered at Nairobi on the 18 th July 2025 (“the tribunal”). The tribunal held as follows:-
a) The Applicants' references dated 29th July 2024 lack merit and we approve the Landlord's notices dated 11 th July 2024 as valid and procedurally lawful. The Respondent has demonstrated a genuine intention to occupy the suit premises for its business for a period exceeding one year.
b)Conversely, the Applicants have not established any legal or equitable bar to the termination.”
c)Further, the tribunal gave Orders as follows:- -
1. THAT the consolidated references by the Tenant/Applicant are hereby dismissed.
2. THAT the Landlord's notices to terminate tenancy dated 11th July 2024 are hereby approved.
3. THAT the Applicants shall vacate the suit premises known as L.R NO. 209/932, KIMATHI STREET, NAIROBI within thirty (30) days from the date of this judgement and in default Landlord shall be entitled to evict them using a licensed Auctioneer who shall be accorded security by the OCS Central Police Station.
4. THOSE costs of this reference shall be borne jointly and severally by the Applicant/Tenants.”
2.The Appellants being aggrieved with the said decision filed a Memorandum of Appeal dated 26 th July 2025 raising seven (7) grounds thereof
3.The Appellant sought the following reliefs:-
“a) This appeal be and is hereby allowed.
b) The judgment of the honourable tribunal delivered in NAIROBI BPRT. NOs. E1057 of 2024 as consolidated with E1058 & E1059 of 2024 and all orders consequential thereto be and are hereby set aside.
c) The references in the tribunal, to wit NAIROBI BPRT. NOs. E1057 of 2024 as consolidated with E1058 & E1059 of 2024 be and is hereby allowed.
d) The notice to terminate tenancy dated 11.07.2024 shall be of no effect.
e) The cost of this appeal and in the reference in the tribunal be and are hereby awarded to the Appellants.”
B. Background/Litigation History
4.The dispute before the tribunal concerned tenancy and occupation of space at L.R. No. 209/9326 (Kimathi House). The 1st Appellant had been in occupation of the premises since 2016, whereas the 2nd and 3rd Appellant’s occupation of the premises commenced in 2011 under a sublease with Synergy Healthcare Limited, which expired in 2022.
5.On 4.08.2022, NW Realite, on behalf of the landlord, Mastermind Tobacco (K) Limited, issued a Letter of Offer to Stream Networking Enterprises Limited for a six-year lease naming the Appellants as guarantors. The Respondent executed a -year lease agreements with the 1 st and 2 nd /3 rd Appellants on 1 November 2023 and 5 July 2023 respectively.
6.The Respondent issued termination notices to the Appellants on 11.07.2024 pursuant to section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, citing an intention to utilize the premises for its own business. Aggrieved by the notices, the Appellants moved the Tribunal in BPRT References E1057/2024, E1058/2024 and E1059/2024, which were consolidated, resulting in the appeal impugning the judgment and orders dated 18.7.2025.
C.Directions of the Court
7.On 3 rd June 2026, the Court, with the consent of all parties represented by counsel, admitted the Appeal for hearing and directed that it be canvassed by way of written submissions to be filed within 21 days for each party. The parties had complied and Appeal set for Judgement upon matter being mentioned on the 21.7.2026.
D.Parties Submissions
8.The Appellants and Respondent filed their written Submissions citing decided decisions(cases) and issues for consideration by the court which I have taken note of alongside the proceedings before the tribunal as presented in the record of appeal.
Distilled Issues for determination: -
1. Whether the tribunal erred in finding that the notices of termination dated 11 July 2024 were valid and complied with section 7(2) of cap 301.laws of Kenya.
2. Whether the landlord has established a Bonafide intention to occupy the premises.
3. Who should bear the costs of the appeal?
E:Analysis and determination
9.It is trite that a decision of a trial judge is subject to interference by an appellate court only if the trial court 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 as held in the case of Selle and Another vs. Associated Motorboat Company Ltd & Others, [1968] EA 123.
10.In the case of Mbogo & Another v Shah [1968] EA 93 it was held that decision of the trial court will only be interfered with if the judge is satisfied that the trial court misdirected himself in some matter and as a result arrived at a wrong decision or the judge clearly exercised its discretion and a miscarriage of justice has been occasioned.
11.Considering that this court is sitting as a first appellate court that never had the chance to hear the evidence from inception or advantage to look at demeanour of the witnesses can only interfere with judgment of the tribunal where there is a clear manifestation that the tribunal was so wrong in exercise of its discretion or misdirected itself in some matter and as a result arrived at a wrong decision.
a) Whether the tribunal erred in finding that the notices of termination dated 11.7.2024 were valid and effective.
12.It is not in dispute that the Respondent issued termination notice(s) dated 11.07.2024 to the Appellants whose effective date of maturity was given as 1.10.2024. The Respondent’s reasons for terminating the tenancy were that: the Landlord wants to use the premises for own personal use ,utilize the premises for expansion of its IT business .
13.The notice was explicitly issued pursuant to Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act chapter 301 laws of Kenya (“the Act”)that provides for termination and alterations of terms and conditions of A controlled tenancy as follows:
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.
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.
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.
1. 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:
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. 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. 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.”
14.Further, Regulation 4(1) of the Landlord and Tenant (Shops forms and procedure) Regulations provides that the notice under Section 4(2) of the Act by a Landlord shall be in Form A in the schedule of those regulations.
15.In the case of Fredrick Mutua Mulinge t/a Kitui Uniform –vs- Kitui Teachers Housing Cooperative Society Limited [2017] KEELC the court reaffirmed strict compliance with conditions set forth in section 4(2) of The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya Act by a land lord who wishes to terminate or vary the terms of a controlled tenancy 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.”
16.. The Court in Mutura v Kagombe [2024] KEELC 5089 (KLR) restated the procedure to be complied with by the landlord who wishes to terminate a controlled tenancy in line with section 4(1) of the act 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 the 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.”
17. In the case of Lall vs Jaypee Investments Ltd Nairobi HCCA No.120 of 1971 (1972) EA 512 , the Court stressed on strict compliance with the statutory provisions of section 4 of “The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act for protection of controlled tenancies. It is explicit from the cited decisions that a a controlled tenancy can be terminated upon the landlord adhering with the provisions of section 4 of The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya failure of which the notice of termination of tenancy is deemed null, void and no legal effect.
18.Having considered the Landlord’s notice dated 11.7.2024 , the Court is satisfied that the respondent complied with the requirements of sections 4(2) and 4(4) of the Act, as well as Regulation 4(1), in respect of the 2nd and 3rd Appellants, whose leases had expired by the time the notices were issued. However, the 1st Appellant’s lease remained in force until 31 October 2024 hence the notice issued to her was contrary to section 4(4) of the Act, which requires that the termination date of a controlled tenancy should be 2 months.
b .whether the grounds relied upon for the termination of the tenancies were valid and legally sustainable.
19.It is prudent to ascertain whether the reason for termination of the tenancy by Respondent is compliant with section 7 of The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya . The purpose and objectives of the act is “ to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto. The court is duty bound to ensure compliance with tenets of the Act for protection of controlled tenants from exploitation by landlords as stated in the case of Eldomart Holdings Limited v Ticket Company Limited [2019] KEELC 4412 (KLR) as follows:-
“ The legislature left no doubt that the Act was enacted for the purposes of protecting tenants. This court must have the said objective in mind while interpreting the Act. The burden was upon the appellant to establish that it had an intention of occupying the suit premises for a period of not less than one year for the purposes of its own business. In the case of Auto Engineering v Gonella (1978) KLR 248, it was held that the onus was on the landlord to establish a firm and settled intention to occupy the premises held by a tenant. I have carefully reviewed the evidence that was placed before the tribunal. I am not satisfied that the appellant had established a firm and settled intention to occupy the suit premises for its own business.”
20.Section 7 of the Act provides for Grounds upon which landlord(s) may seek to terminate tenancy as follows:
1)Where under section 4 of this Act A landlord served a notice of termination of a controlled tenancy on the tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice—
1(g) subject as hereinafter provided, that on the termination of the tenancy the landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes, or partly for the purposes, of a business to be carried on by him therein, or at his residence.
7(2) . The landlord shall not be entitled to oppose a reference to a Tribunal on the ground specified in subsection (1)(g) of this section if the interest of the landlord, or an interest which has merged in that interest and but for the merger would be the interest of the landlord, was purchased or created within the five-year period preceding the date of the tenancy notice seeking to terminate the tenancy, and at all times since such purchase or creation the premises concerned have been occupied wholly or mainly for the purposes of a shop, hotel or catering establishment.
7((3) Subject to subsection (2) of this section, a requesting party may oppose a reference on any ground which has been specified in the tenancy notice concerned.”
21.Section 7(1)(g) of the Act permits a landlord to terminate a tenancy where “ the landlord himself/itself intends to occupy for a period of not less than one year the premises comprising the tenancy. ” In this case it was upon the Tribunal to determine whether the Respondent had demonstrated a genuine intention to occupy the suit premises for at least one year for the purposes of its own business pursuant to the notices dated 11.07.2024. The Court in Auto Engineering Ltd v M Gonella & Co Ltd [1978] KEHC 6 (KLR) observed that a landlord intending to terminate a controlled tenancy must prove its ownership of the premises /property for at least five years. The Respondent cited the case of Hashim Omar Hashim v Alliance Nominee Limited [2020] KEELC 2872 (KLR) where the Court reaffirmed the importance of stating the reason for termination of the tenancy and duration of purposes for termination of the tenancy as stated in the case of James Kariuki Kithinji v Dominic Ntongai [2020] KEELC 3729 (KLR).
22.Upon considering the evidence on record, the Court established that the Appellants and the Respondent’s sole director, Richard Kamau, were previously sub-tenants under Synergy Healthcare Limited. Upon termination of the head tenancy in 2022, The Appellants were offered leases over the premises they occupied by the Respondent. Further, the letter of offer dated 4 August 2022, was addressed to the Respondent naming the Appellants as guarantors though there is no evidence on record that the Appellants executed the offer. The evidence therefore supports the finding that the Respondent’s interest in the premises arose pursuant to the said offer as at 4.8.2022.
23.The Respondent established sufficient proof of a genuine intention to occupy the suit premises for its own use for a period of at least one year being the proposed call center, expansion of its ICT business and sale of technology products as per the photographs of mobile phones and bank statements annexed and not controverted by Appellants.
24.The Respondent ‘s assumption that it had assumed ownership of the premises as early as 2019 was a misdirection by the tribunal as the tenancy -landlord relations ship between Appellants and Respondent commenced on the 4.8.2022. furthermore, the Appellants contended that there are other tenants in the space who were newly added and the main intention for the Respondent was to put new clients in the premises with an increment in rent the burden of which rests with the Appellants to prove their allegations pursuant to section 107-109 of the Evidence Act.
25.Despite proof by Respondent of genuine intention to put up or expand its IT business at a central place for ease of management in compliance with section 7(1) of the Act, the Respondent was bound to establish its acquisition of the premises 5 years prior to 4.8.2022 in compliance with section7(2) of the Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya that protects controlled tenancies from exploitation by the landlords.
26.The Court in Battan Engineering Works v White Line Retread Depot [1977] KEHC 25 (KLR) set out as follows: -
“The landlord is itself a tenant on a month-to-month basis and, therefore, subject to fifteen days’ notice. There was no evidence that it would be allowed to occupy the premises for another year. In Gregson v Cyril Lord Ltd [1962] 3 All ER 907 the Court of Appeal in England held that a landlord had to satisfy the Court that he had a reasonable prospect of being able to bring about this occupation by his own act of volition and that the test was an objective one. The same test, I think, should be applied here. The landlord had occupied the premises for six years. A reasonable man in the circumstances would believe that he had a reasonable prospect of being able to continue his occupation for at least another year .
If the premises were not occupied by the tenant as a shop, the tribunal had no jurisdiction. The tenant raised no objection to the jurisdiction of the tribunal at the hearing. It referred the matter to the tribunal under section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, the appropriate form including the words “I therefore request the tribunal to investigate the matter and determine the issues involved”. In thus submitting to the jurisdiction the tenant, I think, was by its conduct (if not expressly) admitting that the tenancy was a controlled one and therefore that the premises were occupied as a shop.
The interest of the landlord need not be proprietary.
The mischief the subsection is designed to prevent is the acquisition of controlled premises by a person as landlord in order to obtain early occupation for the purposes of a business to be carried on by him. The clear intention of Parliament was to protect a tenant from eviction by a landlord who has not been the landlord for at least five years preceding the notice seeking termination of the tenancy. “Landlord” is defined in section 2(1) as meaning:
the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy.
The word therefore includes a person who is himself a tenant without restriction as to the terms of his tenancy. The definition is fundamental to the interpretation of the Act. The words:
If the interest of the landlord, or an interest which has merged in that interest and but for the merger would be the interest of the landlord, was purchased or created
are taken from section 30(2) of the Landlord and Tenant Act 1954 (England). “Landlord” in section 44(1) of that Act is defined by reference to his ownership of an interest in the property comprised in the tenancy, a definition which is so framed as to exclude any tenancy which has less than fourteen months to run. The interpretation by Courts in England of the words “interest” and “created” is therefore of no assistance. Having regard to the mischief the subsection is designed to prevent and the more liberal definition of the term “landlord” in our Act, these words in my opinion must be given their ordinary and natural meaning. “Interest” would then include the right to receive rents and profits and “created” would not be restricted in meaning to created by registration. To hold otherwise would be to disregard the definition of “landlord” and exclude many sub-tenants from the protection the provision is intended to afford them. If the legislature had intended to restrict the meaning of the word “landlord” in this provision it would have done so expressly and not by implication.
Since the term “interest” also includes a proprietary interest I am not persuaded that the phrase relating to merger of interest deprives the word of its ordinary and natural meaning. The tenancy of the landlord is a lease from month-to-month terminable on fifteen days’ notice. It was made or created in 1970 and not having been terminated is still in existence. It was not created within the five-year period preceding the date of the tenancy notice. The two conditions in section 7(2) being conjunctive it is unnecessary to consider whether the premises had been occupied wholly mainly for the purposes of a shop at all times since the creation of the landlord’s interest.”
27.Further, the court in Pentapharm Limited v Soroya Investment Limited [2018] KEELC 3534 (KLR) restated that a landlord can only oppose a reference as filed by tenants if he purchased the premises 5 years preceding the issuance of termination notice and the premises had been occupied wholly or mainly for purposes of a shop, hotel or catering establishment.
28.It is the court’s finding that the Respondent having acquired its interest in the premises on or about 4 th August 2022 and issued the termination notices on 11 July 2024, had not held the premises for five years as required under section 7(2) of The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya ). The Respondent relied on Fatma Ahmed Al Mandry v Rahma Omar [2021] KEBPRT 111 (KLR) that affirmed the proprietor has a constitutional right under Article 40 of the constitution of Kenya 2010 to enjoy and deal with property as they please, subject to the law. This Court finds the decision persuasive though not binding as it does not displace the statutory protections accorded to protected tenants under the Act.
29.On this basis, this Court finds that the Respondent failed to meet the threshold as set out set in Section 7 (2) of the Act(cap 301 laws of Kenya) calling upon the Landlord to acquire interest in the suit premises for at least five years preceding the date of issuance of the notice of termination of tenancy. The tribunal therefore erred in law in failing to appreciate that the respondent had held the premises for less than 5 years from 4.8.2022 when dismissing the Appellants reference hence allow the appeal on this ground.
30.On the issue of costs, the Court is guided by section 27 of the Civil Procedure Act and the Supreme Court’s decision in Rai & 3 Others v Rai & 4 Others [2014] KESC 31 (KLR), that costs ordinarily follow the events. The Appellants having succeeded in the appeal, the Appellants are awarded the costs of the Appeal and at the tribunal.
Final Orders
31.The appeal is meritorious and allowed as follows: -
A, The Judgment of the Honourable Tribunal delivered on 18.7.2025 in NAIROBI BPRT. NOs. E1057 of 2024 as consolidated with E1058 & E1059 of 2024 and all orders consequential thereto be and are hereby set aside.
c) The references in the tribunal, to wit NAIROBI BPRT. NOs. E1057 of 2024 as consolidated with E1058 & E1059 of 2024 be and is hereby allowed.
d) The notice to terminate tenancy dated 11.07.2024 is declared null and void and shall be of no effect.
e) The cost of this appeal and in the reference are hereby awarded to the Appellants.
It is ordered accordingly.
DATED, SIGNED AND DELIVERED ON THIS 17 TH DAY OF SEPTEMBER 2026 AT VOI IN THE PRESENCE OF:
MR ONGERI FOR THE APPELLANTS (VIRTUALLY)
MR KAMAU FOR THE RESPONDENT (VIRTUALLY)
LETIZIAH -COURT ASSISTANT
BY J .A. ORWA(JUDGE).
1. Before this Court is an appeal arising from the Judgment and Order of Hon. Gakuhi Chege (the chairperson of the Business Premises Tribunal) in BPRT NO. E1057 of 2024 consolidated with E1058 & E1059 of 2024 delivered at Nairobi on the 18 th July 2025 (“the tribunal”). The tribunal held as follows:-
a) The Applicants' references dated 29th July 2024 lack merit and we approve the Landlord's notices dated 11 th July 2024 as valid and procedurally lawful. The Respondent has demonstrated a genuine intention to occupy the suit premises for its business for a period exceeding one year.
b)Conversely, the Applicants have not established any legal or equitable bar to the termination.”
c)Further, the tribunal gave Orders as follows:- -
1. THAT the consolidated references by the Tenant/Applicant are hereby dismissed.
2. THAT the Landlord's notices to terminate tenancy dated 11th July 2024 are hereby approved.
3. THAT the Applicants shall vacate the suit premises known as L.R NO. 209/932, KIMATHI STREET, NAIROBI within thirty (30) days from the date of this judgement and in default Landlord shall be entitled to evict them using a licensed Auctioneer who shall be accorded security by the OCS Central Police Station.
4. THOSE costs of this reference shall be borne jointly and severally by the Applicant/Tenants.”
2.The Appellants being aggrieved with the said decision filed a Memorandum of Appeal dated 26 th July 2025 raising seven (7) grounds thereof
3.The Appellant sought the following reliefs:-
“a) This appeal be and is hereby allowed.
b) The judgment of the honourable tribunal delivered in NAIROBI BPRT. NOs. E1057 of 2024 as consolidated with E1058 & E1059 of 2024 and all orders consequential thereto be and are hereby set aside.
c) The references in the tribunal, to wit NAIROBI BPRT. NOs. E1057 of 2024 as consolidated with E1058 & E1059 of 2024 be and is hereby allowed.
d) The notice to terminate tenancy dated 11.07.2024 shall be of no effect.
e) The cost of this appeal and in the reference in the tribunal be and are hereby awarded to the Appellants.”
B. Background/Litigation History
4.The dispute before the tribunal concerned tenancy and occupation of space at L.R. No. 209/9326 (Kimathi House). The 1st Appellant had been in occupation of the premises since 2016, whereas the 2nd and 3rd Appellant’s occupation of the premises commenced in 2011 under a sublease with Synergy Healthcare Limited, which expired in 2022.
5.On 4.08.2022, NW Realite, on behalf of the landlord, Mastermind Tobacco (K) Limited, issued a Letter of Offer to Stream Networking Enterprises Limited for a six-year lease naming the Appellants as guarantors. The Respondent executed a -year lease agreements with the 1 st and 2 nd /3 rd Appellants on 1 November 2023 and 5 July 2023 respectively.
6.The Respondent issued termination notices to the Appellants on 11.07.2024 pursuant to section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, citing an intention to utilize the premises for its own business. Aggrieved by the notices, the Appellants moved the Tribunal in BPRT References E1057/2024, E1058/2024 and E1059/2024, which were consolidated, resulting in the appeal impugning the judgment and orders dated 18.7.2025.
C.Directions of the Court
7.On 3 rd June 2026, the Court, with the consent of all parties represented by counsel, admitted the Appeal for hearing and directed that it be canvassed by way of written submissions to be filed within 21 days for each party. The parties had complied and Appeal set for Judgement upon matter being mentioned on the 21.7.2026.
D.Parties Submissions
8.The Appellants and Respondent filed their written Submissions citing decided decisions(cases) and issues for consideration by the court which I have taken note of alongside the proceedings before the tribunal as presented in the record of appeal.
Distilled Issues for determination: -
1. Whether the tribunal erred in finding that the notices of termination dated 11 July 2024 were valid and complied with section 7(2) of cap 301.laws of Kenya.
2. Whether the landlord has established a Bonafide intention to occupy the premises.
3. Who should bear the costs of the appeal?
E:Analysis and determination
9.It is trite that a decision of a trial judge is subject to interference by an appellate court only if the trial court 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 as held in the case of Selle and Another vs. Associated Motorboat Company Ltd & Others, [1968] EA 123.
10.In the case of Mbogo & Another v Shah [1968] EA 93 it was held that decision of the trial court will only be interfered with if the judge is satisfied that the trial court misdirected himself in some matter and as a result arrived at a wrong decision or the judge clearly exercised its discretion and a miscarriage of justice has been occasioned.
11.Considering that this court is sitting as a first appellate court that never had the chance to hear the evidence from inception or advantage to look at demeanour of the witnesses can only interfere with judgment of the tribunal where there is a clear manifestation that the tribunal was so wrong in exercise of its discretion or misdirected itself in some matter and as a result arrived at a wrong decision.
a) Whether the tribunal erred in finding that the notices of termination dated 11.7.2024 were valid and effective.
12.It is not in dispute that the Respondent issued termination notice(s) dated 11.07.2024 to the Appellants whose effective date of maturity was given as 1.10.2024. The Respondent’s reasons for terminating the tenancy were that: the Landlord wants to use the premises for own personal use ,utilize the premises for expansion of its IT business .
13.The notice was explicitly issued pursuant to Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act chapter 301 laws of Kenya (“the Act”)that provides for termination and alterations of terms and conditions of A controlled tenancy as follows:
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.
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.
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.
1. 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:
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. 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. 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.”
14.Further, Regulation 4(1) of the Landlord and Tenant (Shops forms and procedure) Regulations provides that the notice under Section 4(2) of the Act by a Landlord shall be in Form A in the schedule of those regulations.
15.In the case of Fredrick Mutua Mulinge t/a Kitui Uniform –vs- Kitui Teachers Housing Cooperative Society Limited [2017] KEELC the court reaffirmed strict compliance with conditions set forth in section 4(2) of The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya Act by a land lord who wishes to terminate or vary the terms of a controlled tenancy 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.”
16.. The Court in Mutura v Kagombe [2024] KEELC 5089 (KLR) restated the procedure to be complied with by the landlord who wishes to terminate a controlled tenancy in line with section 4(1) of the act 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 the 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.”
17. In the case of Lall vs Jaypee Investments Ltd Nairobi HCCA No.120 of 1971 (1972) EA 512 , the Court stressed on strict compliance with the statutory provisions of section 4 of “The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act for protection of controlled tenancies. It is explicit from the cited decisions that a a controlled tenancy can be terminated upon the landlord adhering with the provisions of section 4 of The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya failure of which the notice of termination of tenancy is deemed null, void and no legal effect.
18.Having considered the Landlord’s notice dated 11.7.2024 , the Court is satisfied that the respondent complied with the requirements of sections 4(2) and 4(4) of the Act, as well as Regulation 4(1), in respect of the 2nd and 3rd Appellants, whose leases had expired by the time the notices were issued. However, the 1st Appellant’s lease remained in force until 31 October 2024 hence the notice issued to her was contrary to section 4(4) of the Act, which requires that the termination date of a controlled tenancy should be 2 months.
b .whether the grounds relied upon for the termination of the tenancies were valid and legally sustainable.
19.It is prudent to ascertain whether the reason for termination of the tenancy by Respondent is compliant with section 7 of The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya . The purpose and objectives of the act is “ to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto. The court is duty bound to ensure compliance with tenets of the Act for protection of controlled tenants from exploitation by landlords as stated in the case of Eldomart Holdings Limited v Ticket Company Limited [2019] KEELC 4412 (KLR) as follows:-
“ The legislature left no doubt that the Act was enacted for the purposes of protecting tenants. This court must have the said objective in mind while interpreting the Act. The burden was upon the appellant to establish that it had an intention of occupying the suit premises for a period of not less than one year for the purposes of its own business. In the case of Auto Engineering v Gonella (1978) KLR 248, it was held that the onus was on the landlord to establish a firm and settled intention to occupy the premises held by a tenant. I have carefully reviewed the evidence that was placed before the tribunal. I am not satisfied that the appellant had established a firm and settled intention to occupy the suit premises for its own business.”
20.Section 7 of the Act provides for Grounds upon which landlord(s) may seek to terminate tenancy as follows:
1)Where under section 4 of this Act A landlord served a notice of termination of a controlled tenancy on the tenant, the grounds on which the landlord seeks to terminate such tenancy may be such of the following grounds as are stated in the aforesaid notice—
1(g) subject as hereinafter provided, that on the termination of the tenancy the landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes, or partly for the purposes, of a business to be carried on by him therein, or at his residence.
7(2) . The landlord shall not be entitled to oppose a reference to a Tribunal on the ground specified in subsection (1)(g) of this section if the interest of the landlord, or an interest which has merged in that interest and but for the merger would be the interest of the landlord, was purchased or created within the five-year period preceding the date of the tenancy notice seeking to terminate the tenancy, and at all times since such purchase or creation the premises concerned have been occupied wholly or mainly for the purposes of a shop, hotel or catering establishment.
7((3) Subject to subsection (2) of this section, a requesting party may oppose a reference on any ground which has been specified in the tenancy notice concerned.”
21.Section 7(1)(g) of the Act permits a landlord to terminate a tenancy where “ the landlord himself/itself intends to occupy for a period of not less than one year the premises comprising the tenancy. ” In this case it was upon the Tribunal to determine whether the Respondent had demonstrated a genuine intention to occupy the suit premises for at least one year for the purposes of its own business pursuant to the notices dated 11.07.2024. The Court in Auto Engineering Ltd v M Gonella & Co Ltd [1978] KEHC 6 (KLR) observed that a landlord intending to terminate a controlled tenancy must prove its ownership of the premises /property for at least five years. The Respondent cited the case of Hashim Omar Hashim v Alliance Nominee Limited [2020] KEELC 2872 (KLR) where the Court reaffirmed the importance of stating the reason for termination of the tenancy and duration of purposes for termination of the tenancy as stated in the case of James Kariuki Kithinji v Dominic Ntongai [2020] KEELC 3729 (KLR).
22.Upon considering the evidence on record, the Court established that the Appellants and the Respondent’s sole director, Richard Kamau, were previously sub-tenants under Synergy Healthcare Limited. Upon termination of the head tenancy in 2022, The Appellants were offered leases over the premises they occupied by the Respondent. Further, the letter of offer dated 4 August 2022, was addressed to the Respondent naming the Appellants as guarantors though there is no evidence on record that the Appellants executed the offer. The evidence therefore supports the finding that the Respondent’s interest in the premises arose pursuant to the said offer as at 4.8.2022.
23.The Respondent established sufficient proof of a genuine intention to occupy the suit premises for its own use for a period of at least one year being the proposed call center, expansion of its ICT business and sale of technology products as per the photographs of mobile phones and bank statements annexed and not controverted by Appellants.
24.The Respondent ‘s assumption that it had assumed ownership of the premises as early as 2019 was a misdirection by the tribunal as the tenancy -landlord relations ship between Appellants and Respondent commenced on the 4.8.2022. furthermore, the Appellants contended that there are other tenants in the space who were newly added and the main intention for the Respondent was to put new clients in the premises with an increment in rent the burden of which rests with the Appellants to prove their allegations pursuant to section 107-109 of the Evidence Act.
25.Despite proof by Respondent of genuine intention to put up or expand its IT business at a central place for ease of management in compliance with section 7(1) of the Act, the Respondent was bound to establish its acquisition of the premises 5 years prior to 4.8.2022 in compliance with section7(2) of the Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya that protects controlled tenancies from exploitation by the landlords.
26.The Court in Battan Engineering Works v White Line Retread Depot [1977] KEHC 25 (KLR) set out as follows: -
“The landlord is itself a tenant on a month-to-month basis and, therefore, subject to fifteen days’ notice. There was no evidence that it would be allowed to occupy the premises for another year. In Gregson v Cyril Lord Ltd [1962] 3 All ER 907 the Court of Appeal in England held that a landlord had to satisfy the Court that he had a reasonable prospect of being able to bring about this occupation by his own act of volition and that the test was an objective one. The same test, I think, should be applied here. The landlord had occupied the premises for six years. A reasonable man in the circumstances would believe that he had a reasonable prospect of being able to continue his occupation for at least another year .
If the premises were not occupied by the tenant as a shop, the tribunal had no jurisdiction. The tenant raised no objection to the jurisdiction of the tribunal at the hearing. It referred the matter to the tribunal under section 6 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, the appropriate form including the words “I therefore request the tribunal to investigate the matter and determine the issues involved”. In thus submitting to the jurisdiction the tenant, I think, was by its conduct (if not expressly) admitting that the tenancy was a controlled one and therefore that the premises were occupied as a shop.
The interest of the landlord need not be proprietary.
The mischief the subsection is designed to prevent is the acquisition of controlled premises by a person as landlord in order to obtain early occupation for the purposes of a business to be carried on by him. The clear intention of Parliament was to protect a tenant from eviction by a landlord who has not been the landlord for at least five years preceding the notice seeking termination of the tenancy. “Landlord” is defined in section 2(1) as meaning:
the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy.
The word therefore includes a person who is himself a tenant without restriction as to the terms of his tenancy. The definition is fundamental to the interpretation of the Act. The words:
If the interest of the landlord, or an interest which has merged in that interest and but for the merger would be the interest of the landlord, was purchased or created
are taken from section 30(2) of the Landlord and Tenant Act 1954 (England). “Landlord” in section 44(1) of that Act is defined by reference to his ownership of an interest in the property comprised in the tenancy, a definition which is so framed as to exclude any tenancy which has less than fourteen months to run. The interpretation by Courts in England of the words “interest” and “created” is therefore of no assistance. Having regard to the mischief the subsection is designed to prevent and the more liberal definition of the term “landlord” in our Act, these words in my opinion must be given their ordinary and natural meaning. “Interest” would then include the right to receive rents and profits and “created” would not be restricted in meaning to created by registration. To hold otherwise would be to disregard the definition of “landlord” and exclude many sub-tenants from the protection the provision is intended to afford them. If the legislature had intended to restrict the meaning of the word “landlord” in this provision it would have done so expressly and not by implication.
Since the term “interest” also includes a proprietary interest I am not persuaded that the phrase relating to merger of interest deprives the word of its ordinary and natural meaning. The tenancy of the landlord is a lease from month-to-month terminable on fifteen days’ notice. It was made or created in 1970 and not having been terminated is still in existence. It was not created within the five-year period preceding the date of the tenancy notice. The two conditions in section 7(2) being conjunctive it is unnecessary to consider whether the premises had been occupied wholly mainly for the purposes of a shop at all times since the creation of the landlord’s interest.”
27.Further, the court in Pentapharm Limited v Soroya Investment Limited [2018] KEELC 3534 (KLR) restated that a landlord can only oppose a reference as filed by tenants if he purchased the premises 5 years preceding the issuance of termination notice and the premises had been occupied wholly or mainly for purposes of a shop, hotel or catering establishment.
28.It is the court’s finding that the Respondent having acquired its interest in the premises on or about 4 th August 2022 and issued the termination notices on 11 July 2024, had not held the premises for five years as required under section 7(2) of The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya ). The Respondent relied on Fatma Ahmed Al Mandry v Rahma Omar [2021] KEBPRT 111 (KLR) that affirmed the proprietor has a constitutional right under Article 40 of the constitution of Kenya 2010 to enjoy and deal with property as they please, subject to the law. This Court finds the decision persuasive though not binding as it does not displace the statutory protections accorded to protected tenants under the Act.
29.On this basis, this Court finds that the Respondent failed to meet the threshold as set out set in Section 7 (2) of the Act(cap 301 laws of Kenya) calling upon the Landlord to acquire interest in the suit premises for at least five years preceding the date of issuance of the notice of termination of tenancy. The tribunal therefore erred in law in failing to appreciate that the respondent had held the premises for less than 5 years from 4.8.2022 when dismissing the Appellants reference hence allow the appeal on this ground.
30.On the issue of costs, the Court is guided by section 27 of the Civil Procedure Act and the Supreme Court’s decision in Rai & 3 Others v Rai & 4 Others [2014] KESC 31 (KLR), that costs ordinarily follow the events. The Appellants having succeeded in the appeal, the Appellants are awarded the costs of the Appeal and at the tribunal.
Final Orders
31.The appeal is meritorious and allowed as follows: -
A, The Judgment of the Honourable Tribunal delivered on 18.7.2025 in NAIROBI BPRT. NOs. E1057 of 2024 as consolidated with E1058 & E1059 of 2024 and all orders consequential thereto be and are hereby set aside.
c) The references in the tribunal, to wit NAIROBI BPRT. NOs. E1057 of 2024 as consolidated with E1058 & E1059 of 2024 be and is hereby allowed.
d) The notice to terminate tenancy dated 11.07.2024 is declared null and void and shall be of no effect.
e) The cost of this appeal and in the reference are hereby awarded to the Appellants.
It is ordered accordingly.
DATED, SIGNED AND DELIVERED ON THIS 17 TH DAY OF SEPTEMBER 2026 AT VOI IN THE PRESENCE OF:
MR ONGERI FOR THE APPELLANTS (VIRTUALLY)
MR KAMAU FOR THE RESPONDENT (VIRTUALLY)
LETIZIAH -COURT ASSISTANT
BY J .A. ORWA(JUDGE).