(Being an appeal from the Ruling of the Business Premises Rent Tribunal of Kenya at Nairobi by Hon. Gakuhi Chege (Panel Chairman) and Hon. Joyce Osodo (Member) on 3rd September 2025 in BPRT/E382/2025).
RULING
1. Before me is a Notice of Motion application dated 13th October 2025 filed by the applicant under the provisions of Articles 48 & 159(2)(d) of the Constitution of Kenya, Sections 1A, 1B, 3A, 79G & 95 of the Civil Procedure Act, and Order 50 Rules 6 & Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicant seeks orders for stay of execution of the Ruling delivered on 3rd September 2025 by Hon. Gakuhi Chege (Chairman) and Hon. Joyce Osodo (Member) in BPRT/E382/202, pending the hearing and determination of the intended appeal, for leave to file an appeal out of time and for the annexed Memorandum of Appeal to be admitted and deemed as duly filed within time.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Justin Kamwendia, the applicant herein. He averred that in July 2023, he orally leased his stall to the respondent at a monthly rent of Kshs.15,000/=, but the respondent persistently failed to pay rent, having only paid for three (3) out of the fourteen (14) months of occupation. He averred that he evicted the respondent in October 2023 due to continued default. He further averred that the respondent subsequently filed BPRT/E382/2025 in April 2025, which was heard and determined, culminating in a Ruling delivered on 3rd September 2025.
3. Mr. Kamwendia stated that he was aggrieved by the said Ruling, and wishes to appeal against it and annexed a draft Memorandum of Appeal to the application. He explained that the time for filing the appeal had lapsed and therefore seeks leave to appeal out of time, attributing the delay to bereavement, which prevented him from instructing Counsel within the prescribed timeline. He contended that the intended appeal is arguable with high chances of success and maintained that the orders being sought herein will not prejudice the respondent.
4. In opposition to the application, the respondent filed a Notice of Preliminary Objection dated 30th October 2025 raising the following grounds –
i) That the appeal was filed out of the statutory time limit as required by Section 79G of the Civil Procedure Act;
ii) That the applicant has not obtained leave of this Honourable Court to file the appeal out of time;
iii) That this Honourable Court lacks the jurisdiction to entertain the said appeal, which is fatally defective and incompetent, as an appeal filed outside the limitation period without leave is a nullity;
iv) That in the absence of a valid appeal, all motions and proceedings stemming from it are null and void;
v) That the Preliminary Objection raises a pure point of law based on the admitted timelines, which if upheld, will dispose of the appeal in its entirety; and
vi) AND FURTHER TAKE NOTICE that the respondent shall, at the hearing of the appeal, pray that the said appeal be struck out and/or dismissed with costs.
5. The respondent also filed a replying affidavit sworn on 30th October 2025 by Ms Ruth Makori, the respondent herein. Ms Makori deposed that the lower Court issued a valid and binding Order on 3rd September 2025 granting her access and possession of the premises, which the applicant willfully disobeyed despite proper service. She stated that the applicant only moved to this Court after lawful execution of the decree, not to preserve justice but to sanitize his continued defiance, and that he had unlawfully re-let the premises to another tenant during the pendency of the suit in contempt of Court Orders. She asserted that the lower Court dismissed the applicant’s oral request to retain the subsequent tenant, confirming the irregularity of his conduct.
6. She averred that she has since taken possession of the premises in accordance with the decree but continues to face interference by the applicant. Ms Makori contended that the applicant does not deserve an equitable remedy as he has approached the Court with unclean hands, that the appeal and application were filed outside the statutory timelines without sufficient explanation, and that an appeal filed out of time without leave is incurably defective. She deposed that the applicant has not demonstrated substantial loss and claimed that she is the one suffering prejudice due to the applicant’s contemptuous acts.
7. The instant application was canvassed by way of oral submissions.
8. Mr. Kaveke, learned Counsel for the applicant submitted that the Tribunal’s Order directing the respondent to return to the suit premises effectively amounted to rewriting the contract between the parties, irrespective of any mistake the applicant may have made in evicting the respondent. He argued that the Tribunal’s directive deprived the applicant of his property and that its finding that no Notice to vacate was issued offended the provisions of Article 159(2)(d) of the Constitution of Kenya. Counsel contended that as the contract between the parties herein did not contemplate specific performance, an award of damages would have been an adequate remedy.
9. He observed that the respondent vacated the premises in June 2024 but only approached the Tribunal in April 2025, nearly eight (8) months later. Mr. Kaveke explained that the applicant lost two close relatives shortly after the Tribunal’s decision, and due to mourning, he was unable to file an appeal against the said decision promptly. Counsel pointed out that the delay ran from 3rd September 2025 to 13th October 2025. He maintained that the intended appeal is meritorious, adding that although the respondent had leased the premises to start a hotel business, she never commenced operations and no hotel equipment was ever placed in the premises.
10. Mr. Ndemo, learned Counsel for the respondent submitted that the application for stay of execution has been overtaken by events, as the respondent has already taken possession of the suit premises pursuant to the Tribunal’s Orders. He noted that although the premises were initially locked, they were subsequently rented out to another tenant during the proceedings. Counsel further pointed out that the Tribunal delivered its Ruling on 3rd September 2025, yet the instant application was only filed on 21st October 2025. He emphasized that a Memorandum of Appeal ought to have been filed within thirty (30) days if the applicant intended to appeal against the said Ruling.
11. In a rejoinder, Mr. Kaveke submitted that the applicant repossessed the suit premises in June 2024 due to the respondent’s non-payment of rent and subsequently rented the premises to a new tenant.
ANALYSIS AND DETERMINATION.
12. I have considered of the application herein, the grounds on the face of it and the affidavit filed in support thereof, the replying affidavit and Notice of Preliminary Objection by the respondent and the oral submissions by Counsel for the parties made on 4th November 2025. The issues that arise for determination are –
i) Whether the application for leave to file an appeal out of time is merited; and
ii) Whether an order for stay of execution against the Tribunal’s Ruling delivered on 3rd September 2025 should issue.
Whether the application for leave to file an appeal out of time is merited.
13. From the application herein and averments made for and against it, it is manifest that the impugned Ruling was delivered by the Business Premises Rent Tribunal on 3rd September 2025 in BPRT/E382/2025. The Business Premises Rent Tribunal is established under Section 11 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. Appeals from decisions of the said Tribunal are provided for under Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act which provides that –
1) Any party to a reference aggrieved by any determination or order of a Tribunal made therein may, within thirty days after the date of such determination or order, appeal to the Environment and Land Court:
Provided that the Environment and Land Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.
2) In hearing appeals under subsection (1) of this section the Court shall have all the powers conferred on a Tribunal by or under this Act, in addition to any other powers conferred on it by or under any written law.
3) Deleted by Act No. 2 of 1970, s. 13.
4) The procedure in and relating to appeals in civil matters from subordinate courts to the Environment and Land Court shall govern appeals under this Act:
Provided that the decision of the Environment and Land Court on any appeal under this Act shall be final and shall not be subject to further appeal. (Emphasis added).
14. Pursuant to the provisions of Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Appeals from decisions of the Business Premises Rent Tribunal shall lie to the Environment and Land Court. As such, a question of whether or not this Court has the jurisdiction to entertain an appeal from a decision of the Business Premises Rent Tribunal and/or even the application herein arises.
15. Courts have repeatedly held that the issue of jurisdiction need not be raised by the parties to the suit, the Court may suo moto determine whether it has jurisdiction, particularly where lack of jurisdiction is inferred from the pleadings, as is the case herein. The locus classicus on jurisdiction is the case of the Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1, where Nyarangi, JA., held as follows–
…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
16. Jurisdiction is conferred by statute and the Constitution not by parties. Further, where a statute expressly provides for a forum under which a dispute is to be heard and determined, it goes without saying that such provisions have to be adhered to. Therefore, in view of the above and the provisions of Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, I find that I have no jurisdiction to determine an appeal from the decision of the Business Premises Rent Tribunal and/or the instant application. Accordingly, I must down my tools
17. In view of the foregoing, it is my finding that the instant application is fatally defective and it is hereby struck out with costs to the respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 5th day of December 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Kaveke for the applicant
Mr. Ndemo for the respondent
Ms B. Wokabi – Court Assistant.
RULING
1. Before me is a Notice of Motion application dated 13th October 2025 filed by the applicant under the provisions of Articles 48 & 159(2)(d) of the Constitution of Kenya, Sections 1A, 1B, 3A, 79G & 95 of the Civil Procedure Act, and Order 50 Rules 6 & Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicant seeks orders for stay of execution of the Ruling delivered on 3rd September 2025 by Hon. Gakuhi Chege (Chairman) and Hon. Joyce Osodo (Member) in BPRT/E382/202, pending the hearing and determination of the intended appeal, for leave to file an appeal out of time and for the annexed Memorandum of Appeal to be admitted and deemed as duly filed within time.
2. The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Justin Kamwendia, the applicant herein. He averred that in July 2023, he orally leased his stall to the respondent at a monthly rent of Kshs.15,000/=, but the respondent persistently failed to pay rent, having only paid for three (3) out of the fourteen (14) months of occupation. He averred that he evicted the respondent in October 2023 due to continued default. He further averred that the respondent subsequently filed BPRT/E382/2025 in April 2025, which was heard and determined, culminating in a Ruling delivered on 3rd September 2025.
3. Mr. Kamwendia stated that he was aggrieved by the said Ruling, and wishes to appeal against it and annexed a draft Memorandum of Appeal to the application. He explained that the time for filing the appeal had lapsed and therefore seeks leave to appeal out of time, attributing the delay to bereavement, which prevented him from instructing Counsel within the prescribed timeline. He contended that the intended appeal is arguable with high chances of success and maintained that the orders being sought herein will not prejudice the respondent.
4. In opposition to the application, the respondent filed a Notice of Preliminary Objection dated 30th October 2025 raising the following grounds –
i) That the appeal was filed out of the statutory time limit as required by Section 79G of the Civil Procedure Act;
ii) That the applicant has not obtained leave of this Honourable Court to file the appeal out of time;
iii) That this Honourable Court lacks the jurisdiction to entertain the said appeal, which is fatally defective and incompetent, as an appeal filed outside the limitation period without leave is a nullity;
iv) That in the absence of a valid appeal, all motions and proceedings stemming from it are null and void;
v) That the Preliminary Objection raises a pure point of law based on the admitted timelines, which if upheld, will dispose of the appeal in its entirety; and
vi) AND FURTHER TAKE NOTICE that the respondent shall, at the hearing of the appeal, pray that the said appeal be struck out and/or dismissed with costs.
5. The respondent also filed a replying affidavit sworn on 30th October 2025 by Ms Ruth Makori, the respondent herein. Ms Makori deposed that the lower Court issued a valid and binding Order on 3rd September 2025 granting her access and possession of the premises, which the applicant willfully disobeyed despite proper service. She stated that the applicant only moved to this Court after lawful execution of the decree, not to preserve justice but to sanitize his continued defiance, and that he had unlawfully re-let the premises to another tenant during the pendency of the suit in contempt of Court Orders. She asserted that the lower Court dismissed the applicant’s oral request to retain the subsequent tenant, confirming the irregularity of his conduct.
6. She averred that she has since taken possession of the premises in accordance with the decree but continues to face interference by the applicant. Ms Makori contended that the applicant does not deserve an equitable remedy as he has approached the Court with unclean hands, that the appeal and application were filed outside the statutory timelines without sufficient explanation, and that an appeal filed out of time without leave is incurably defective. She deposed that the applicant has not demonstrated substantial loss and claimed that she is the one suffering prejudice due to the applicant’s contemptuous acts.
7. The instant application was canvassed by way of oral submissions.
8. Mr. Kaveke, learned Counsel for the applicant submitted that the Tribunal’s Order directing the respondent to return to the suit premises effectively amounted to rewriting the contract between the parties, irrespective of any mistake the applicant may have made in evicting the respondent. He argued that the Tribunal’s directive deprived the applicant of his property and that its finding that no Notice to vacate was issued offended the provisions of Article 159(2)(d) of the Constitution of Kenya. Counsel contended that as the contract between the parties herein did not contemplate specific performance, an award of damages would have been an adequate remedy.
9. He observed that the respondent vacated the premises in June 2024 but only approached the Tribunal in April 2025, nearly eight (8) months later. Mr. Kaveke explained that the applicant lost two close relatives shortly after the Tribunal’s decision, and due to mourning, he was unable to file an appeal against the said decision promptly. Counsel pointed out that the delay ran from 3rd September 2025 to 13th October 2025. He maintained that the intended appeal is meritorious, adding that although the respondent had leased the premises to start a hotel business, she never commenced operations and no hotel equipment was ever placed in the premises.
10. Mr. Ndemo, learned Counsel for the respondent submitted that the application for stay of execution has been overtaken by events, as the respondent has already taken possession of the suit premises pursuant to the Tribunal’s Orders. He noted that although the premises were initially locked, they were subsequently rented out to another tenant during the proceedings. Counsel further pointed out that the Tribunal delivered its Ruling on 3rd September 2025, yet the instant application was only filed on 21st October 2025. He emphasized that a Memorandum of Appeal ought to have been filed within thirty (30) days if the applicant intended to appeal against the said Ruling.
11. In a rejoinder, Mr. Kaveke submitted that the applicant repossessed the suit premises in June 2024 due to the respondent’s non-payment of rent and subsequently rented the premises to a new tenant.
ANALYSIS AND DETERMINATION.
12. I have considered of the application herein, the grounds on the face of it and the affidavit filed in support thereof, the replying affidavit and Notice of Preliminary Objection by the respondent and the oral submissions by Counsel for the parties made on 4th November 2025. The issues that arise for determination are –
i) Whether the application for leave to file an appeal out of time is merited; and
ii) Whether an order for stay of execution against the Tribunal’s Ruling delivered on 3rd September 2025 should issue.
Whether the application for leave to file an appeal out of time is merited.
13. From the application herein and averments made for and against it, it is manifest that the impugned Ruling was delivered by the Business Premises Rent Tribunal on 3rd September 2025 in BPRT/E382/2025. The Business Premises Rent Tribunal is established under Section 11 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. Appeals from decisions of the said Tribunal are provided for under Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act which provides that –
1) Any party to a reference aggrieved by any determination or order of a Tribunal made therein may, within thirty days after the date of such determination or order, appeal to the Environment and Land Court:
Provided that the Environment and Land Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.
2) In hearing appeals under subsection (1) of this section the Court shall have all the powers conferred on a Tribunal by or under this Act, in addition to any other powers conferred on it by or under any written law.
3) Deleted by Act No. 2 of 1970, s. 13.
4) The procedure in and relating to appeals in civil matters from subordinate courts to the Environment and Land Court shall govern appeals under this Act:
Provided that the decision of the Environment and Land Court on any appeal under this Act shall be final and shall not be subject to further appeal. (Emphasis added).
14. Pursuant to the provisions of Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Appeals from decisions of the Business Premises Rent Tribunal shall lie to the Environment and Land Court. As such, a question of whether or not this Court has the jurisdiction to entertain an appeal from a decision of the Business Premises Rent Tribunal and/or even the application herein arises.
15. Courts have repeatedly held that the issue of jurisdiction need not be raised by the parties to the suit, the Court may suo moto determine whether it has jurisdiction, particularly where lack of jurisdiction is inferred from the pleadings, as is the case herein. The locus classicus on jurisdiction is the case of the Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1, where Nyarangi, JA., held as follows–
…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
16. Jurisdiction is conferred by statute and the Constitution not by parties. Further, where a statute expressly provides for a forum under which a dispute is to be heard and determined, it goes without saying that such provisions have to be adhered to. Therefore, in view of the above and the provisions of Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, I find that I have no jurisdiction to determine an appeal from the decision of the Business Premises Rent Tribunal and/or the instant application. Accordingly, I must down my tools
17. In view of the foregoing, it is my finding that the instant application is fatally defective and it is hereby struck out with costs to the respondent.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 5th day of December 2025. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Kaveke for the applicant
Mr. Ndemo for the respondent
Ms B. Wokabi – Court Assistant.