(Being an Appeal from the Ruling of Hon. Andrew Muma delivered at the Business Premises Rent Tribunal; BPRT NO. E572 OF 2024 at Nairobi on 17th April 2025)
1.Before this Court is an appeal arising from the Ruling of Hon. Andrew Muma delivered at the Business Premises Rent Tribunal; BPRT NO. E572 OF 2024 at Nairobi on 17th April 2025) (“the tribunal”) where the tribunal held: -
“ 1. THAT the orders of 28/5/2024 are set aside in their entirety.
2. THAT Status quo before the Tribunals orders be and is hereby maintained Tenants to remain in occupation.
3. THAT the Tenants items to be returned immediately.
4. THAT OCS Obama Police to assist in compliance.
5. THAT the Tenants Reference is compromised on the above terms by parties to seek further remedy in the appropriate forum.
6. No orders as to costs.”
2.The Appellant being aggrieved by the decision of the tribunal filed the appeal dated 19 th May 2025 urging the court to set aside the tribunal’s order/ruling dated 17.4.2025 and allow the appeal by setting aside The Ruling and decision by the Hon. Andrew Muma (member of the BPRT-Nairobi) delivered on 17th April 2025 in Nairobi BPRT Case no. E572 of 2024 – Salvation Healing Ministry versus Makiyi Properties Limited and all consequential Orders. the appellant urged the court to grant any other orders deemed fit so to costs of the appeal in favor of appellant.
3. A brief background of the appeal is that on 1.6.2021 the Appellant and Respondent entered into a three-year lease agreement over a portion of Plot No. 5908/9-2 along Kangundo Road, Nairobi, pursuant to which the Respondent took possession and established a church premise. The Respondent persistently defaulted in payment of monthly rent and utility charges, prompting the Applicant to levy distress for rent provoking The Respondent to file a reference vide Nairobi BPRT Case No. E572 of 2024, Salvation Healing Ministry v Makiyi Properties Limited .The Tribunal dismissed the Respondent’s application, reference and authorised the Appellant to break into the premises and seize the proclaimed goods for sale by public auction. Pending hearing and determination of the reference the parties were informed of judgment of this Court by Okong’o J as He then was in the case of Obade & 299 Others v Estate of Gerishon Kirima & Others , that a portion of the land on which the suit property was established formed part of the Estate of Gerishon Kamau Kirima. Subsequently the Respondent/tenant moved the tribunal for release of the goods then proclaimed and attached by the Appellant claiming ownership of the portion of the land it occupied and hence distress for rent could not be executed against it being the owner thereof and a land matter.
4.Based on this declaration by the respondent the tribunal held that it lacked jurisdiction to entertain the matter but ordered for release of the attached goods to the tenant and status quo to be maintained without dealing with accrued rent due to the appellant. The landlord being aggrieved appealed the ruling of the tribunal.
5.The Appeal was admitted for hearing and directed to be disposed of by written submissions. The Appellant complied via submissions dated 9.6.2026 though the respondent did not comply.
6.Having considered the entire record of appeal, Memorandum and grounds raised in the appeal together with the Appellant’s written submissions, the issues for determination are -
a.Whether the tribunal erred in law and fact by making further Orders in a matter it had made a finding that it lacked the jurisdiction to hear and determine.
a) whether the Tribunal had jurisdiction to consider Appellant’s response and accrued rent expenses.
b) who to pay costs of the appeal?
c) Analysis and determination
7. Whether the Tribunal, having found that it lacked jurisdiction, erred in issuing consequential orders for the release of the attached goods.
8.In the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others (2012) eKLR the court held that jurisdiction of a court flows from the constitution, legislation or both. The Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
9.Article 159 of the constitution of Kenya 2010 provides for judicial authority that should be exercised judiciously by courts and tribunals. The Business Premises Rent Tribunal is established under Section 11 of the Landlord and Tenant (Shops Hotels and Catering Establishments) Act (Cap 301) although it derives its jurisdiction from Section 12 of the Act.
10.The jurisdiction of Tribunal was aptly discussed in the case of Republic vs Business Premises Rent Tribunal & Another Ex- Parte Albert Kigera Karume [2015] eKLR which cited with approval the case of Re Hebtulla Properties Ltd [1979] KLR 96; [1976-80] 1 KLR 1195 where the Court dealt with the provisions of section 12 of the Act and stated as follows: -
“The Tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied... The powers of the Tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the Tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1)(a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the Tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the Tribunal, but merely states what the Tribunal may do within its area of jurisdiction…… It would be erroneous to think that section 12(4) confers on the Tribunal any extra jurisdiction to that given by and under the Act elsewhere…Section 12(4) of the Act must be read together with the rest of the Act and, when this is done it becomes apparent that the complaint must be about a matter the Tribunal has jurisdiction to deal with under the Act and that is why the complaint has to relate to a controlled tenancy…. The Act uses the words “any complaint” and the only qualification is that it must be “relating to a controlled tenancy”.
11.Based on the cited case law and statutory provisions, a tribunal has the mandate to resolve issues related to controlled tenancies. However, once the Landlord - Tenant relationship no longer exists the Tribunal has no jurisdiction to entertain such matters.
12.It is not disputed that the parties were in a landlord-tenant relationship effective June, 1.2021, during which rent payable to the appellant by respondent. The Respondent was duly bound to pay the arrears failing which the appellant was entitled to levy distress. The tribunal dismissed the respondent’s reference dated May 15,2024 when the Appellant served the notice to distrain for rent arrears upon it and mandated the appellant to distrain for and attach the goods of the Respondent. tribunal rightly exercised its mandate while issuing the order for distress for rent and attachment of goods of the Respondent in compliance with the case of Omondi v Kassam & another (Civil Appeal E018 of 2024) [2024] KEHC 10703 (KLR)where the Court held as follows: -
“Thus, where a tenant fails to pay rent altogether, the landlord has the right to levy distress for unpaid rent. This remedy is best exercised by engaging the services of an auctioneer. Distress for rent by the landlord involves seizing of the tenant’s goods within the premises for which rent is owed without the need to commence litigation. See Distress for rent is governed by the Distress for Rent Act, which prohibits landlords from levying distress for rent at night and on Sundays. The law also prohibits landlords from seizing tools of trade, perishable goods, goods belonging to third parties, clothes and beddings and pets.”
13.Subsequently, by an application dated 12 December 2024, the Respondent produced an Agreement for Sale executed between itself and the Administrators of the Estate of Gerishon Kamau Kirima on 9 December 2024 and having noted existence of the judgement of Okongo J as He then was in elc case Obade & 299 Others v Kirima & Others and 60 others( civil suit no 1257of 2014 &252 of 2011as consolidated with land case civil suit number 1257 of 2014 &252of 2011&environment &land case 509&850 of 2014 and 1496 &1318 of 2013 consolidated (2023)keelc 20868 klr observed that it had no jurisdiction to deal with the matter which was now environment and land dispute. The tribunal at this juncture downed its tools and could not move a step further in handling any other issue in the reference as stated in the case of owners of motor vessel Lilian’s S vs Caltex oil company ltd (kenya)1989KLR1 .
14.The Respondent moved the Tribunal for release of its goods then attached by the Appellant pursuant to the order/ruling delivered on May 26, 2024 (see order dated 28.5.2024) arising from the motion dated May15,2024. In its subsequent ruling dated 17.4.2025 regarding the application dated 12.12.2024 the tribunal noted that the dispute was no longer based on a landlord-tenant relationship. Instead, because the matter concerned ownership of land, the tribunal lacked jurisdiction to deal with the matter. Consequently, the tribunal ordered for release of the attached goods to the Respondent and directed that the status quo be maintained pending resolution of the dispute before the appropriate forum (see order signed on 28.5.2024).
15.The Tribunal having pronounced itself on the application dated May 15,2024 and declared want of jurisdiction to deal with the matter in its ruling dated 17.4.2025 was barred from re-opening a matter it had rendered its final decision on citing with approval the Court of Appeal in Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR , which upholds finality to litigation.
16.As to wh ether the Tribunal erred in reopening the dismissed reference and failing to consider the Appellant’s response and accrued rent arrears, expenses, the court notes the provisions of section 12 of Landlord and Tenant (Shops Hotels and Catering Establishments) Act (Cap 301 ) mandates the tribunal “to vary or rescind any order made by the Tribunal under the provisions of this Act so to section 99 of the Civil Procedure Act 2010 that allows amendment of Clerical or Arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”
17.The Application (dated 12.12.2024) from which the impugned ruling dated 17.4.2025, emanated was not meant for amendment of arithmetical or clerical mistakes in the ruling delivered on the 26.5.2024 vide order dated 28.5.2024 but amounted to a total overhaul of the order then issued by the tribunal to the detriment of the Appellant. Section 12 of Landlord and Tenant (Shops Hotels Catering Establishments) Act (Cap 301) or section 99 of Civil Procedure Act,2010 was not applicable to the impugned ruling before this court for determination, the tribunal having found that it lacked jurisdiction to entertain the application dated 12.12.2024. The tribunal errered in law and fact when it issued the orders for release of the attached goods by the Appellant to the Respondent on the 17.4.2025 and ordering for maintaining of status quo as the issue of rent arrears payment is sought for in appropriate forums hence find the appeal meritorious and allowed on this ground.
18.As to Who should pay the costs of appeal , it is trite that Costs follow events and payable to the successful party pursuant to section 27 of the Civil Procedure Act, 2010.Taking into account the circumstances of the case, costs are awarded to the Appellant.
19. Final disposition of the appeal is that the appeal is meritorious and allowed on following terms: -
a) The Ruling and decision by the Hon. Andrew Muma (member of the BPRT-Nairobi) delivered on 17th April 2025 in Nairobi BPRT Case no. E572 of 2024 – Salvation Healing Ministry versus Makiyi Properties Limited and all consequential Orders issued thereto be and are hereby set aside and vacated.
b) The costs of the Appeal and the application dated 12.12.2024 are awarded to the Appellant.
It is so ordered accordingly.
DATED, SIGNED AND DELIVERED ON THIS 21 ST DAY OF SEPTEMBER, 2026 AT VOI IN THE PRESENCE OF:
MS NASAMBU FOR MR MBABU FOR THE APPELLANT
MR WANGA FOR THE RESPODENT
LETISIAH -COURT ASSISTANT
BY J.A. ORWA(JUDGE)
21.9.2026.
1.Before this Court is an appeal arising from the Ruling of Hon. Andrew Muma delivered at the Business Premises Rent Tribunal; BPRT NO. E572 OF 2024 at Nairobi on 17th April 2025) (“the tribunal”) where the tribunal held: -
“ 1. THAT the orders of 28/5/2024 are set aside in their entirety.
2. THAT Status quo before the Tribunals orders be and is hereby maintained Tenants to remain in occupation.
3. THAT the Tenants items to be returned immediately.
4. THAT OCS Obama Police to assist in compliance.
5. THAT the Tenants Reference is compromised on the above terms by parties to seek further remedy in the appropriate forum.
6. No orders as to costs.”
2.The Appellant being aggrieved by the decision of the tribunal filed the appeal dated 19 th May 2025 urging the court to set aside the tribunal’s order/ruling dated 17.4.2025 and allow the appeal by setting aside The Ruling and decision by the Hon. Andrew Muma (member of the BPRT-Nairobi) delivered on 17th April 2025 in Nairobi BPRT Case no. E572 of 2024 – Salvation Healing Ministry versus Makiyi Properties Limited and all consequential Orders. the appellant urged the court to grant any other orders deemed fit so to costs of the appeal in favor of appellant.
3. A brief background of the appeal is that on 1.6.2021 the Appellant and Respondent entered into a three-year lease agreement over a portion of Plot No. 5908/9-2 along Kangundo Road, Nairobi, pursuant to which the Respondent took possession and established a church premise. The Respondent persistently defaulted in payment of monthly rent and utility charges, prompting the Applicant to levy distress for rent provoking The Respondent to file a reference vide Nairobi BPRT Case No. E572 of 2024, Salvation Healing Ministry v Makiyi Properties Limited .The Tribunal dismissed the Respondent’s application, reference and authorised the Appellant to break into the premises and seize the proclaimed goods for sale by public auction. Pending hearing and determination of the reference the parties were informed of judgment of this Court by Okong’o J as He then was in the case of Obade & 299 Others v Estate of Gerishon Kirima & Others , that a portion of the land on which the suit property was established formed part of the Estate of Gerishon Kamau Kirima. Subsequently the Respondent/tenant moved the tribunal for release of the goods then proclaimed and attached by the Appellant claiming ownership of the portion of the land it occupied and hence distress for rent could not be executed against it being the owner thereof and a land matter.
4.Based on this declaration by the respondent the tribunal held that it lacked jurisdiction to entertain the matter but ordered for release of the attached goods to the tenant and status quo to be maintained without dealing with accrued rent due to the appellant. The landlord being aggrieved appealed the ruling of the tribunal.
5.The Appeal was admitted for hearing and directed to be disposed of by written submissions. The Appellant complied via submissions dated 9.6.2026 though the respondent did not comply.
6.Having considered the entire record of appeal, Memorandum and grounds raised in the appeal together with the Appellant’s written submissions, the issues for determination are -
a.Whether the tribunal erred in law and fact by making further Orders in a matter it had made a finding that it lacked the jurisdiction to hear and determine.
a) whether the Tribunal had jurisdiction to consider Appellant’s response and accrued rent expenses.
b) who to pay costs of the appeal?
c) Analysis and determination
7. Whether the Tribunal, having found that it lacked jurisdiction, erred in issuing consequential orders for the release of the attached goods.
8.In the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others (2012) eKLR the court held that jurisdiction of a court flows from the constitution, legislation or both. The Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) 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 down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
9.Article 159 of the constitution of Kenya 2010 provides for judicial authority that should be exercised judiciously by courts and tribunals. The Business Premises Rent Tribunal is established under Section 11 of the Landlord and Tenant (Shops Hotels and Catering Establishments) Act (Cap 301) although it derives its jurisdiction from Section 12 of the Act.
10.The jurisdiction of Tribunal was aptly discussed in the case of Republic vs Business Premises Rent Tribunal & Another Ex- Parte Albert Kigera Karume [2015] eKLR which cited with approval the case of Re Hebtulla Properties Ltd [1979] KLR 96; [1976-80] 1 KLR 1195 where the Court dealt with the provisions of section 12 of the Act and stated as follows: -
“The Tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied... The powers of the Tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the Tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under section 12(1)(a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the Tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the Tribunal, but merely states what the Tribunal may do within its area of jurisdiction…… It would be erroneous to think that section 12(4) confers on the Tribunal any extra jurisdiction to that given by and under the Act elsewhere…Section 12(4) of the Act must be read together with the rest of the Act and, when this is done it becomes apparent that the complaint must be about a matter the Tribunal has jurisdiction to deal with under the Act and that is why the complaint has to relate to a controlled tenancy…. The Act uses the words “any complaint” and the only qualification is that it must be “relating to a controlled tenancy”.
11.Based on the cited case law and statutory provisions, a tribunal has the mandate to resolve issues related to controlled tenancies. However, once the Landlord - Tenant relationship no longer exists the Tribunal has no jurisdiction to entertain such matters.
12.It is not disputed that the parties were in a landlord-tenant relationship effective June, 1.2021, during which rent payable to the appellant by respondent. The Respondent was duly bound to pay the arrears failing which the appellant was entitled to levy distress. The tribunal dismissed the respondent’s reference dated May 15,2024 when the Appellant served the notice to distrain for rent arrears upon it and mandated the appellant to distrain for and attach the goods of the Respondent. tribunal rightly exercised its mandate while issuing the order for distress for rent and attachment of goods of the Respondent in compliance with the case of Omondi v Kassam & another (Civil Appeal E018 of 2024) [2024] KEHC 10703 (KLR)where the Court held as follows: -
“Thus, where a tenant fails to pay rent altogether, the landlord has the right to levy distress for unpaid rent. This remedy is best exercised by engaging the services of an auctioneer. Distress for rent by the landlord involves seizing of the tenant’s goods within the premises for which rent is owed without the need to commence litigation. See Distress for rent is governed by the Distress for Rent Act, which prohibits landlords from levying distress for rent at night and on Sundays. The law also prohibits landlords from seizing tools of trade, perishable goods, goods belonging to third parties, clothes and beddings and pets.”
13.Subsequently, by an application dated 12 December 2024, the Respondent produced an Agreement for Sale executed between itself and the Administrators of the Estate of Gerishon Kamau Kirima on 9 December 2024 and having noted existence of the judgement of Okongo J as He then was in elc case Obade & 299 Others v Kirima & Others and 60 others( civil suit no 1257of 2014 &252 of 2011as consolidated with land case civil suit number 1257 of 2014 &252of 2011&environment &land case 509&850 of 2014 and 1496 &1318 of 2013 consolidated (2023)keelc 20868 klr observed that it had no jurisdiction to deal with the matter which was now environment and land dispute. The tribunal at this juncture downed its tools and could not move a step further in handling any other issue in the reference as stated in the case of owners of motor vessel Lilian’s S vs Caltex oil company ltd (kenya)1989KLR1 .
14.The Respondent moved the Tribunal for release of its goods then attached by the Appellant pursuant to the order/ruling delivered on May 26, 2024 (see order dated 28.5.2024) arising from the motion dated May15,2024. In its subsequent ruling dated 17.4.2025 regarding the application dated 12.12.2024 the tribunal noted that the dispute was no longer based on a landlord-tenant relationship. Instead, because the matter concerned ownership of land, the tribunal lacked jurisdiction to deal with the matter. Consequently, the tribunal ordered for release of the attached goods to the Respondent and directed that the status quo be maintained pending resolution of the dispute before the appropriate forum (see order signed on 28.5.2024).
15.The Tribunal having pronounced itself on the application dated May 15,2024 and declared want of jurisdiction to deal with the matter in its ruling dated 17.4.2025 was barred from re-opening a matter it had rendered its final decision on citing with approval the Court of Appeal in Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR , which upholds finality to litigation.
16.As to wh ether the Tribunal erred in reopening the dismissed reference and failing to consider the Appellant’s response and accrued rent arrears, expenses, the court notes the provisions of section 12 of Landlord and Tenant (Shops Hotels and Catering Establishments) Act (Cap 301 ) mandates the tribunal “to vary or rescind any order made by the Tribunal under the provisions of this Act so to section 99 of the Civil Procedure Act 2010 that allows amendment of Clerical or Arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.”
17.The Application (dated 12.12.2024) from which the impugned ruling dated 17.4.2025, emanated was not meant for amendment of arithmetical or clerical mistakes in the ruling delivered on the 26.5.2024 vide order dated 28.5.2024 but amounted to a total overhaul of the order then issued by the tribunal to the detriment of the Appellant. Section 12 of Landlord and Tenant (Shops Hotels Catering Establishments) Act (Cap 301) or section 99 of Civil Procedure Act,2010 was not applicable to the impugned ruling before this court for determination, the tribunal having found that it lacked jurisdiction to entertain the application dated 12.12.2024. The tribunal errered in law and fact when it issued the orders for release of the attached goods by the Appellant to the Respondent on the 17.4.2025 and ordering for maintaining of status quo as the issue of rent arrears payment is sought for in appropriate forums hence find the appeal meritorious and allowed on this ground.
18.As to Who should pay the costs of appeal , it is trite that Costs follow events and payable to the successful party pursuant to section 27 of the Civil Procedure Act, 2010.Taking into account the circumstances of the case, costs are awarded to the Appellant.
19. Final disposition of the appeal is that the appeal is meritorious and allowed on following terms: -
a) The Ruling and decision by the Hon. Andrew Muma (member of the BPRT-Nairobi) delivered on 17th April 2025 in Nairobi BPRT Case no. E572 of 2024 – Salvation Healing Ministry versus Makiyi Properties Limited and all consequential Orders issued thereto be and are hereby set aside and vacated.
b) The costs of the Appeal and the application dated 12.12.2024 are awarded to the Appellant.
It is so ordered accordingly.
DATED, SIGNED AND DELIVERED ON THIS 21 ST DAY OF SEPTEMBER, 2026 AT VOI IN THE PRESENCE OF:
MS NASAMBU FOR MR MBABU FOR THE APPELLANT
MR WANGA FOR THE RESPODENT
LETISIAH -COURT ASSISTANT
BY J.A. ORWA(JUDGE)
21.9.2026.