Vide the Memorandum of Appeal dated 16th September, 2024, the Appellant challenged the ruling in Business Premises Rent Tribunal Case No. E016 of 2024, Kisumu, delivered on 29th August, 2024 on the grounds that;
- the learned trial Magistrate erred in law and fact by failing to consider that an application cannot settle an entire suit.
- that learned Magistrate erred in law and fact by failing to realize that a Reference is the substantive suit in any/all Business Premises Rent Tribunal causes and issues raised in the Reference should be heard and determined as it is the entire suit.
- the learned trial Magistrate erred in law and fact by failing to appreciate the laid legal procedures in both the issuance of a Termination Notice and the subsequent eviction of a tenant respectively as stipulated under Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act 2022.
- the learned Magistrate generally erred in law and fact in giving a decision that was not supported by the law and the facts
The appellant sought for orders that;
- this honourable court be pleased to allow the appeal by setting aside the entire Ruling and the Decree of the Subordinate Court delivered by Honourable Joyce Akinyi Osodo on 29th day of August, 2024, in Business Premises Rent Tribunal Case No. E016 of 2024, Kisumu.
- the execution of the Ruling dated 29th August, 2024 be stayed and the Ruling itself be set aside and the Appellant herein be allowed to tender evidence and the matter proceeds to full hearing of the Reference filed by Appellant.
- That the cost of this Appeal and the cost of the suit before the Subordinate Court be awarded to the Appellant.
A brief background of the appeal is that the Appellant was the Tenant/Applicant and the Respondent the Landlord in case No. E016 OF 2024 before the Business Premises Rent Tribunal< Kisumu>
The Appellant had moved the Tribunal vide a Reference under section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Cap 301 dated 14th May, 2024 with a complaint that the Landlord had issued a threat to unlawfully terminate the tenancy by locking the suit premises and refusing to accept rent.
The record shows that the Tribunal heard the reference together with interlocutory applications, filed by the parties and vide the ruling dated 29th August 2024 found that the Notice to terminate tenancy issued by the Respondent and dated 14th March, 2024 was lawful and valid, that the Tenant was not entitled to the orders sought in the application dated 14th May, 2024, dismissed the Appellant’s application, allowed the Respondent’s application dated 22nd May, 2024 and ordered the tenant to vacate the suit premises within 21 days of the date of the ruling in default, be forcefully evicted by a licensed auctioneer. The Appellant was also ordered to pay rent arrears and costs of Kshs.50,000/- to the Respondent.
Aggrieved by the ruling, the Appellant preferred the present appeal.
Submissions
The appeal was heard by way of written submissions. Written submissions dated 20th July, 2025 were filed by the firm of Magotsi Law Advocates on behalf of the Appellant.
Written submissions dated 26th September, 2025 were filed by Otieno Ochich & Associates Advocates on behalf of the Respondent.
Analysis and determination
This being a first appeal, this court has an obligation to review and reanalyse the evidence placed before the trial court.
The first ground of appeal is that the trial court erred in law and fact by failing to consider that an application cannot settle an entire suit.
It was submitted on behalf of the Appellant that in handling the matter before it, the Tribunal delivered the impugned ruling on both the Appellant’s application and the Respondent’s application and marked the entire suit as settled.
Counsel relied on the provisions of sections 4(4) and 6 of the Act and submitted that the initial matter presented before the Tribunal through the reference was a substantive legal issue. That the substantive issue being the prescribed procedure for issuing a Termination of Tenancy Notice was never addressed which oversight led to an injustice suffered by the Appellant.
Relying on the cases of Mwaniki t/a Anfield Auctioneers & Another -vs- Itawa [2025] KEHC 8587 (KLR) and the case of Rockland Kenya Ltd -vs- Commissioner General of KRA & Another (2020)eKLR, Counsel submitted that the Tribunal erred in determining a substantive matter vide an application without even canvassing on the substantive issue raised/placed before that Tribunal.
On behalf of the Respondent, it was submitted that the main suit (i.e. the reference) was properly tried and determined. That the interlocutory applications were consolidated with reference for hearing and disposal. That the Appellant’s Counsel conceded to the consolidation. That the Appellant filed submissions dated 4th July, 2024 in the Tribunal in respect of both the application and the reference.
That the validity of the Notice of termination of tenancy was the main issue in the reference and that the trial court identified it as one of the issues for determination and did determine the same.
I have read the reference filed before the Tribunal vide the Notice of Motion dated 14th May 2024, indeed the substantive issue was the legality of the Notice of termination of tenancy issued by the Respondent and dated 14th March, 2024. The reply by the Respondent also shows that the Notice of termination of tenancy was the main issue of the reference. I have also noted from the record that on 16. 5. 2024 counsel when the matter was coming up for hearing of the appellant’s application dated 14/5/2024 and the Landlord’s application dated 23/5/2024, Counsel for the Landlord proposed that the applications and the reference be consolidated for hearing to save time. The record shows that Counsel for the appellant indicated that he concurred and that both applications be heard together and that parties do submissions.
The ruling shows that the court considered the reference and made findings on the same and a final decision.
The Appellant has not demonstrated what aspects of the reference remained undetermined as there was a determination.
The next ground of appeal is whether or not the learned trial Magistrate failed to appreciate the laid legal procedure in the issuance of a Termination Notice and the subsequent eviction of a tenant respectively stipulated under section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act 2022.
Perusal of the ruling shows that the trial court did not only refer to the statute and case law but also referred to the facts of the present case and the chronology of the events leading to the termination of tenancy. It has not been demonstrated how the trial court failed and what injustice ensued.
I find that the grounds of appeal have not been proved. The appeal lacks merit and is hereby dismissed with costs to the Respondent.
Orders accordingly.
Judgement dated and signed at Kisumu and delivered virtually this 27th day of November, 2025.
E. ASATI
JUDGE.
In the presence of:
Maureen: Court Assistant.
Magotsi for the Appellant
Ochich for the 1st Respondent.
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