The defendant has raised a preliminary objection on the Notice of Motion dated 8th April, 2026 seeking to have it struck out on the grounds that the Honourable Court lacks jurisdiction to entertain the present matter.
The defendant contends that the dispute herein arises from a controlled tenancy governed exclusively by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, jurisdiction over which is vested exclusively in the Business Premises Rent Tribunal by Sections 11 and 12 of the said Act, to the exclusion of this court.
The suit is barred by the doctrine of subjudice under Section 6 of the Civil Procedure Act, Cap 21. The same matter, between the same parties and over the same subject matter, is already pending before the Business Premises Rent Tribunal in BPRT/E086 of 2026 Mega Garment Industries Kenya (EPZ) Limited versus Mistry Jadva Parbat and Company (EPZ) Limited, in which proceedings certain interlocutory orders were issued on 31st March, 2026, the matter awaits to be heard.
The orders issued by the Business Premises Rent Tribunal on 31st March, 2026 are subsisting and unchallenged as no appeal has been preferred and no application for judicial review has been filed to set them aside.
The filing of this suit in this Honourable Court while the said matter subsists in the Business Premises Rent Tribunal is therefore an abuse of the process of the court.
The Plaintiff has not enclosed any Board Resolution authorizing the filing of this suit. Reasons wherefore the Defendant/Respondent prays that the Plaintiff's/Applicant's application dated 8th April, 2026 be struck out with costs to the Defendant/Respondent.
The plaintiff opposes the preliminary objection and submits that the suit property lies in an Export Processing Zone designated as such under the Export Processing Zone Act, Cap 517 Laws of Kenya and the Plaintiff was the Landlord of the Defendant in the premises constructed thereon. The Plaintiff submits that the said objection is devoid of any merits and should be dismissed.
On the Jurisdiction of the Court, the plaintiff relies on Section 29 (2) (h) of the Export Processing Zone Act provides as follows:
a. 'Subject to subsection (1) and without prejudice to any other written law, the export processing zone enterprise, export processing zone developers and the export processing zone operators shall be granted the following exemptions—
b. (h) exemptions from rent or tenancy controls;'
According to the plaintiff, the wording of the statute is unequivocal. Export Processing Zone enterprises, developers and operators are expressly exempted from rent and tenancy controls. The Defendant is an EPZ enterprise while the Plaintiff is an EPZ developer/operator within the meaning of the Act. The tenancy relationship between the parties therefore falls outside the ambit of Cap 301 by operation of statute.
The Defendant's contention that the dispute is a controlled tenancy under Cap 301 is therefore contrary to the express provisions of Section 29(2)(h) of the Export Processing Zones Act. Indeed, this exact issue between the same parties was previously litigated and determined by the High Court at Mombasa in Misc. Civil Application No. 80 of 2011: Republic vs Chairperson Business Premises Rent Tribunal Ex Parte Mistry Jadva Parbat & Co. (EPZ) Limited; Mega Garments Industries Kenya (EPZ) Limited Interested Party.
In that matter, the Court was called upon to determine whether the Business Premises Rent Tribunal had jurisdiction over disputes arising from tenancy premises situated within an Export Processing Zone. The Court expressly considered Section 29(2)(h) of the Export Processing Zones Act and held that the exemption from tenancy controls removed such tenancies from the jurisdiction of the Tribunal. The Court held inter alia:
"This statute commenced on 23rd November 1990. Section 29(2)(h) clearly exempts Export Processing Zone enterprises, developers & operators from rent or tenancy controls."
a. Further, the Court stated:
"On a plain reading of that Section it removes these enterprises, developers and operators from the control of Cap 301 without expressly mentioning that statute."
The Court ultimately found that the Tribunal had acted without jurisdiction EPZ and issued orders quashing the proceedings before the Business Premises Rent Tribunal. The issue presently before this Honourable Court is therefore not new. It has already been conclusively determined between the same parties on the same statutory framework. The Defendant cannot now seek to revive the very jurisdiction that the High Court previously declared the Tribunal did not possess.
On the Allegation of Sub Judice, the plaintiff argues that The Defendants contention that that the suit is sub judice by reason of proceedings before the Business Premises Rent Tribunal collapses once it is appreciated that the Tribunal lacks jurisdiction over EPZ tenancies. Proceedings commenced before a body devoid of jurisdiction cannot be relied upon to oust the jurisdiction of this Honourable Court. Jurisdiction is everything and without it, any proceedings before the Tribunal are nullities ab initio.
In conclusion the plaintiff argues that the Defendant's Preliminary Objection is premised on a misconception of the applicable statutory regime and ignores a prior binding determination between the same parties on the same issue.
I have carefully considered the preliminary objection and the submissions in response.
The provision of Section 29(2)(h) provides for exemption of the Export Processing Zone enterprises, developers and operators from rent or tenancy controls without expressly making reference to the Provisions of Cap 301. There is therefore an implied exemption. An implied exemption falls under the broader Doctrine of Implied Repeal. The Doctrine is to the effect that if the provisions of a latter statute conflict with the provisions of a prior statute, the provisions of the latter statute prevails.
Chapter 7 of Maxwell on The Interpretation of Statutes (11th Edition) is a discussion on the construction of statutes to avoid collision with other provisions. From that book is this useful passage:-
"where a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one. Even when a later enactment, or the later part of one, is in the negative. It is sometimes reconcilable with the earlier one by so treating it."
Chapter 301 is an Act of Parliament which came into operation on 1st November 1965 and its object is stated in its preamble as:
"An Act of Parliament to make provisions 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."
Section 2 of that Act defines controlled Tenancy as a
"shop, hotel or catering establishment-
a) Which has not been reduced into writing; or
b) Which has been reduced into writing and which
i. Is for a period not exceeding five years; or
ii. Contains provision for termination, otherwise than for breach of covenant within five years from the commencement thereof; or
iii. Relates top premises of a class specified under subsection (2) of this section:"
iv. The proviso thereto exempts tenancies to which the Government, the community or a Local Authority is a party.
The Export Processing Zones Act was enacted with the objective of:-
"Providing for the establishment of Export Processing Zone and the Export Processing Zones Authority, to provide for the promotion and facilitation of export oriented investment and the development of enabling environment for such investment and for connected purposes."
This statue commenced on 23rd November 1990. Section 29(2) (h) clearly exempts Export Processing Zone enterprises, developers & Operators from rent or tenancy controls. On a plain reading of that Section it removes these enterprises, developers and operators from the control of cap 301 without expressly mentioning that statute. That would bring it into conflict with the provisions of Section 4(1) of Cap 301 which provides:-
"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."
The Export Processing Zone Act was enacted some 25 years after Chapter 301. Is it possible that Sections 2 and 4(1) of Cap 301 could foreclose or prevent Parliament from, in future, exempting certain tenancies from its provisions? I would think not because that would amount to curtailing or limiting the Supremacy of Parliament in its legislative function. Determining not a dissimilar conflict, Maugham L.J had this to say in Ellen Street Estates Limited vs Minister of Health (1934) 1KB 590:-
"The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation as it is impossible for parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a Commissioner under Section 6(1), and must accordingly include the identity of the public body for whom the land is acquired and the public interest in respect of which it is acquired. It is only when a notice contains such information that a person affected thereby can fairly be expected to seize his right to challenge the legality of the acquisition. That is because the test of the legality of the acquisition is whether the land is required for a public body for a public benefit and such purpose is so necessary that it justifies hardship to the owner. Those details must be contained in the notice itself for the prima facie validity of the acquisition must be judged on the content of the notice. The test must be satisfied at the outset and not with aid of subsequent evidence. I do not understand Re Kisima (supra) to hold that information subsequently gleaned from material before the court can cure the defects apparent on the face of the notice. I understand the case to hold that failure to specify the public body for whom the land is acquired and the purpose of the acquisition are the defects which persuaded the Court that the Applicant therein had established a prima facie case that the Commissioner of Lands lacked jurisdiction to proceed with compulsory acquisition."
From the foregoing, I do find the preliminary objection without merit and is dismissed with costs.
The defendant contends that the dispute herein arises from a controlled tenancy governed exclusively by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, jurisdiction over which is vested exclusively in the Business Premises Rent Tribunal by Sections 11 and 12 of the said Act, to the exclusion of this court.
The suit is barred by the doctrine of subjudice under Section 6 of the Civil Procedure Act, Cap 21. The same matter, between the same parties and over the same subject matter, is already pending before the Business Premises Rent Tribunal in BPRT/E086 of 2026 Mega Garment Industries Kenya (EPZ) Limited versus Mistry Jadva Parbat and Company (EPZ) Limited, in which proceedings certain interlocutory orders were issued on 31st March, 2026, the matter awaits to be heard.
The orders issued by the Business Premises Rent Tribunal on 31st March, 2026 are subsisting and unchallenged as no appeal has been preferred and no application for judicial review has been filed to set them aside.
The filing of this suit in this Honourable Court while the said matter subsists in the Business Premises Rent Tribunal is therefore an abuse of the process of the court.
The Plaintiff has not enclosed any Board Resolution authorizing the filing of this suit. Reasons wherefore the Defendant/Respondent prays that the Plaintiff's/Applicant's application dated 8th April, 2026 be struck out with costs to the Defendant/Respondent.
The plaintiff opposes the preliminary objection and submits that the suit property lies in an Export Processing Zone designated as such under the Export Processing Zone Act, Cap 517 Laws of Kenya and the Plaintiff was the Landlord of the Defendant in the premises constructed thereon. The Plaintiff submits that the said objection is devoid of any merits and should be dismissed.
On the Jurisdiction of the Court, the plaintiff relies on Section 29 (2) (h) of the Export Processing Zone Act provides as follows:
a. 'Subject to subsection (1) and without prejudice to any other written law, the export processing zone enterprise, export processing zone developers and the export processing zone operators shall be granted the following exemptions—
b. (h) exemptions from rent or tenancy controls;'
According to the plaintiff, the wording of the statute is unequivocal. Export Processing Zone enterprises, developers and operators are expressly exempted from rent and tenancy controls. The Defendant is an EPZ enterprise while the Plaintiff is an EPZ developer/operator within the meaning of the Act. The tenancy relationship between the parties therefore falls outside the ambit of Cap 301 by operation of statute.
The Defendant's contention that the dispute is a controlled tenancy under Cap 301 is therefore contrary to the express provisions of Section 29(2)(h) of the Export Processing Zones Act. Indeed, this exact issue between the same parties was previously litigated and determined by the High Court at Mombasa in Misc. Civil Application No. 80 of 2011: Republic vs Chairperson Business Premises Rent Tribunal Ex Parte Mistry Jadva Parbat & Co. (EPZ) Limited; Mega Garments Industries Kenya (EPZ) Limited Interested Party.
In that matter, the Court was called upon to determine whether the Business Premises Rent Tribunal had jurisdiction over disputes arising from tenancy premises situated within an Export Processing Zone. The Court expressly considered Section 29(2)(h) of the Export Processing Zones Act and held that the exemption from tenancy controls removed such tenancies from the jurisdiction of the Tribunal. The Court held inter alia:
"This statute commenced on 23rd November 1990. Section 29(2)(h) clearly exempts Export Processing Zone enterprises, developers & operators from rent or tenancy controls."
a. Further, the Court stated:
"On a plain reading of that Section it removes these enterprises, developers and operators from the control of Cap 301 without expressly mentioning that statute."
The Court ultimately found that the Tribunal had acted without jurisdiction EPZ and issued orders quashing the proceedings before the Business Premises Rent Tribunal. The issue presently before this Honourable Court is therefore not new. It has already been conclusively determined between the same parties on the same statutory framework. The Defendant cannot now seek to revive the very jurisdiction that the High Court previously declared the Tribunal did not possess.
On the Allegation of Sub Judice, the plaintiff argues that The Defendants contention that that the suit is sub judice by reason of proceedings before the Business Premises Rent Tribunal collapses once it is appreciated that the Tribunal lacks jurisdiction over EPZ tenancies. Proceedings commenced before a body devoid of jurisdiction cannot be relied upon to oust the jurisdiction of this Honourable Court. Jurisdiction is everything and without it, any proceedings before the Tribunal are nullities ab initio.
In conclusion the plaintiff argues that the Defendant's Preliminary Objection is premised on a misconception of the applicable statutory regime and ignores a prior binding determination between the same parties on the same issue.
I have carefully considered the preliminary objection and the submissions in response.
The provision of Section 29(2)(h) provides for exemption of the Export Processing Zone enterprises, developers and operators from rent or tenancy controls without expressly making reference to the Provisions of Cap 301. There is therefore an implied exemption. An implied exemption falls under the broader Doctrine of Implied Repeal. The Doctrine is to the effect that if the provisions of a latter statute conflict with the provisions of a prior statute, the provisions of the latter statute prevails.
Chapter 7 of Maxwell on The Interpretation of Statutes (11th Edition) is a discussion on the construction of statutes to avoid collision with other provisions. From that book is this useful passage:-
"where a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one. Even when a later enactment, or the later part of one, is in the negative. It is sometimes reconcilable with the earlier one by so treating it."
Chapter 301 is an Act of Parliament which came into operation on 1st November 1965 and its object is stated in its preamble as:
"An Act of Parliament to make provisions 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."
Section 2 of that Act defines controlled Tenancy as a
"shop, hotel or catering establishment-
a) Which has not been reduced into writing; or
b) Which has been reduced into writing and which
i. Is for a period not exceeding five years; or
ii. Contains provision for termination, otherwise than for breach of covenant within five years from the commencement thereof; or
iii. Relates top premises of a class specified under subsection (2) of this section:"
iv. The proviso thereto exempts tenancies to which the Government, the community or a Local Authority is a party.
The Export Processing Zones Act was enacted with the objective of:-
"Providing for the establishment of Export Processing Zone and the Export Processing Zones Authority, to provide for the promotion and facilitation of export oriented investment and the development of enabling environment for such investment and for connected purposes."
This statue commenced on 23rd November 1990. Section 29(2) (h) clearly exempts Export Processing Zone enterprises, developers & Operators from rent or tenancy controls. On a plain reading of that Section it removes these enterprises, developers and operators from the control of cap 301 without expressly mentioning that statute. That would bring it into conflict with the provisions of Section 4(1) of Cap 301 which provides:-
"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."
The Export Processing Zone Act was enacted some 25 years after Chapter 301. Is it possible that Sections 2 and 4(1) of Cap 301 could foreclose or prevent Parliament from, in future, exempting certain tenancies from its provisions? I would think not because that would amount to curtailing or limiting the Supremacy of Parliament in its legislative function. Determining not a dissimilar conflict, Maugham L.J had this to say in Ellen Street Estates Limited vs Minister of Health (1934) 1KB 590:-
"The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation as it is impossible for parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If in a Commissioner under Section 6(1), and must accordingly include the identity of the public body for whom the land is acquired and the public interest in respect of which it is acquired. It is only when a notice contains such information that a person affected thereby can fairly be expected to seize his right to challenge the legality of the acquisition. That is because the test of the legality of the acquisition is whether the land is required for a public body for a public benefit and such purpose is so necessary that it justifies hardship to the owner. Those details must be contained in the notice itself for the prima facie validity of the acquisition must be judged on the content of the notice. The test must be satisfied at the outset and not with aid of subsequent evidence. I do not understand Re Kisima (supra) to hold that information subsequently gleaned from material before the court can cure the defects apparent on the face of the notice. I understand the case to hold that failure to specify the public body for whom the land is acquired and the purpose of the acquisition are the defects which persuaded the Court that the Applicant therein had established a prima facie case that the Commissioner of Lands lacked jurisdiction to proceed with compulsory acquisition."
From the foregoing, I do find the preliminary objection without merit and is dismissed with costs.