1. This is an Appeal against the entire Judgment and Decree of the Business Premises Rent Tribunal at Nakuru (hereinafter referred to as “the Tribunal ”) delivered on 8 th November 2024 in Nakuru BPRT Case No. 60 of 2020 by Hon. Gakuhi Chege , Panel Chairperson, and Hon. Joyce Osodo , Member.
2. The dispute before the Tribunal arose from a Reference filed by the Respondent herein, Leo Investments Limited , on 26 th March 2020 , concerning the alleged tenancy over the property known as CIS-MARA/LEMEK/173 (hereinafter referred to as “the Suit Property ).
3. The Appellants, who were the 1 st , 2 nd and 3 rd Respondents respectively before the Tribunal, being dissatisfied with the entire Judgment and Decree of the Tribunal, preferred the present Appeal by a Memorandum of Appeal dated 6 th December 2024, and set out the following 22 grounds of Appeal:
(a) The Learned Chairman of the Tribunal Hon. Gakuhi Chege, together with the Member of the Tribunal, Hon. Joyce Osodo erred in law when they purported to issue a Decree dated 8 th November 2024 executable before the same Tribunal in the Reference before the BPRT when they had no jurisdiction to do so, inasmuch as any determination of the Reference by the Tribunal can only be enforceable upon adoption of the decision by a competent Court, pursuant to Section 14 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act.
(b) The Learned Panelists of the Tribunal ignored the binding Judgement and Decree of this Honourable Narok ELC Court dated 28 th July, 2022 in ELC 55 of 2018 (Samson olol Maitai & Others vs Furahia Africa Promotions Ltd) in which this Honourable ELC Court granted the Appellants permanent injunctive Orders against the Defendant therein, Furahia Africa Promotions Ltd under whom the Respondent herein (Leo Investments Ltd) purported to be a subtenant of, yet was expressly barred from the suit property by the said Decree and Order of this Court in Narok ELC 55 of 2018.
(c) The Learned Panelists of the Tribunal by their Judgement and Decree appealed against openly breached and violated the doctrine of stare decisis espoused in Article 163(7) of the Constitution of Kenya, in that the Decree and judgement of this Honourable ELC Court dated 28 th July 2022 in Narok ELC 55 of 2018 cited to them and produced in evidence at the trial before the Tribunal was final in respect of the Lease over CIS-MARA/LEMEK/173 under which the Respondent herein purported to claim a non-existent tenancy. They thereby erred and acted ultra vires the said provision in the Constitution of Kenya.
(d) The Learned Panelists of the Tribunal in issuing their judgement and Decree herein appealed against (with respect) and ordering the Respondent herein to enter upon the Appellants’ parcel CIS-MARA/LEMEK/173 effectively purported to act in an appellate capacity against the Decree of this Honourable ELC Court in Narok ELC No. 55 of 2018, which was a violation of Article 165(6) of the Constitution of Kenya. Such
(e) The Learned Panelists of the Tribunal erred in law and in fact when they found that the Respondent herein Leo Investments Ltd was allegedly a tenant of the Appellants in respect of the parcel CIS-MARA/LEMEK/173 when no evidence of any Lease, Tenancy, Sub-Tenancy or Sub-Lease was produced by the Respondents to prove that such a tenancy ever existed, or exists between the Respondent and the Appellants, and in any event the terms thereof were never stated on oath or produced in evidence by the Respondent.
(f) The Learned Panelists of the Tribunal erred in law and in fact when they purported that the demand letter for rent arrears under the Distress for Rent Act, written to Furahia Africa Promotions Ltd as the LESSEE of the Appellants in respect of the Appellants’ parcel CIS-MARA/LEMEK/173 and copied to the Respondent was null and void thereby exonerating Furahia Africa Promotions Ltd the obligation to remit the Appellants’ rent arrears in a manner that was an oblique appeal against this Honourable ELC Court’s decision in Narok ELC 55 of 2018 decided on 28 th July 2022.
(g) The Learned Panelists of the Tribunal erred in law and in fact were openly biased against the Appellants, and they irrationally favored the Respondent when they made findings in their Judgement appealed against without any evidence tendered by the Respondent in support of the same.
(h) The Learned Panelists of the Tribunal were openly biased against the Appellants and they sunk into the arena of litigation and argued the Respondent’s unsubstantiated allegations, and rendered a judgement and Decree containing pleas never requested for or pleaded by the Respondent as contained in their judgement and Decree dated 8 th November 2024.
(i) The Learned Panelists of the Tribunal were openly biased against the Appellants as they contradicted themselves in the findings regarding the Respondent’s purported tenancy over the Appellants’ parcel CIS-MARA/LEMEK/173 as contained in the Judgement appealed against, even going against their own decision in the case of Muya & 2 others v Nzyoki (Tribunal Case E747 of 2023) [2024] KEBPRT 83 (KLR) (2 February 2024) (Ruling), involving similar facts in a manner that violated Article 27(4) of the Constitution of Kenya, thereby rendering the impugned Judgement and Decree null and void.
(j) The Learned Panelists of the Tribunal erred in law and in fact held that whereas there was no express consent by the Appellants allowing any construction/repairs by the Respondent to be carried on their suit property CIS-MARA/LEMEK/173 when such Consent must by law be expressed in writing, and none was produced before the Tribunal by the Respondent, the alleged improvements were allegedly warranted. They thereby arrived at a wrong decision in law and in fact.
(k) The Learned Panelists of the Tribunal erred in law and in fact when they issued a Decree for its own enforcement in furtherance of the impugned Judgement issued on 8 th November 2024, in breach of Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act by reason of which the terms of enforcement of the Judgement by the Tribunal itself in the purported Decree are null and void ab initio.
(l) The Learned Panelists of the Tribunal erred in law and in fact when they held that the Respondent had proved its Reference before the BPRT against the Appellants, when in fact it had not done so, and there was no lawful Amended Reference filed with the BPRT or served on the Appellants such as formed the purported decision appealed against.
(m) The Learned Panelists of the Tribunal erred in law and in fact in holding that the Appellants were landlords of the Respondent herein and yet there was no evidence of the alleged landlord-tenant relationship on the facts presented during the trial.
(n) The Learned Panelists of the Tribunal erred in law and in fact in ignoring the binding authorities tendered to them by the Appellants, and in totally ignoring the Appellants’ submissions that pointed to the nullity of the Respondent’s Reference ab initio.
(o) The Learned Panelists of the Tribunal erred in law and in fact when they held that the issue of the alleged tenancy of the Respondent over the Appellants’ parcel CIS-MARA/LEMEK/173 had been decided by this Honourable Narok ELC Court in Narok ELC Appeal No E07 of 2020 when in fact no such material finding of fact had been established or rendered, and the ELC Court in the said decision had only rendered itself on the Preliminary Objection by the Appellants that the Respondent having already lodged the subject Reference then the ELC Court was divested of jurisdiction (as opposed to the ELC making an actual finding on the alleged tenancy of the Respondent). They therefore erred in spurning and disregarding the weight and span of the Appellants’ evidence of the lack of a tenant-landlord relationship tabled before them at the trial.
(p) The Learned Panelists of the Tribunal erred in law and in fact in finding the Appellants had allegedly evicted the Respondent from the property CIS-MARA/LEMEK/173 when no such eviction ever took place and no evidence of such event was ever tendered at the trial.
(q) The Learned Panelists of the Tribunal erred in law and in fact in finding the Appellants had allegedly agreed to a rent in respect of the Appellants’ property CIS-MARA/LEMEK/173 of Ksh. 150,000/= without any periodic explanation thereof, and when no such evidence was tendered or proven by the Respondent.
(r) The Learned Panelists of the Tribunal erred in law and in fact in allowing the Respondent’s Reference filed on 26 th March 2020 when no positive orders were therein prayed for, as contained in the Judgement appealed against and as enumerated in the BPRT’s Decree dated 8 th November 2024. The said judgement and Decree dated 8 th November 2024 are a nullity in toto, and the findings thereof ultra vires the Landlord and Tenants (Shops, hotels and catering establishment Act Cap 301 Laws of Kenya.
(s) The Learned Panelists of the Tribunal erred in law and in fact when they held that the Appellants had allegedly hired goons to evict the Respondent, yet in the same Judgement held that the Respondent had alleged that it shut down its business. The Tribunal thus arrived at a decision not backed by facts.
(t) The Learned Panelists of the Tribunal erred in law and in fact in their judgement and Decree in assessing damages in the sum of Ksh. 2,000,000/= for alleged trespass by the Appellants on their own property CIS-MARA/LEMEK/173, when no such evidence was led or tendered by the Respondent at the trial. The said award is a nullity ab initio.
(u) The Learned Panelists of the Tribunal erred in law and in fact when they dealt with the Reference before them as a Complaint alternately and indiscriminately, thereby prejudicing the Appellants and arrived at an unlawful decision.
(v) The Learned Panelists of the Tribunal erred in law and in fact when they ordered in their Judgement and Decree appealed against a purported valuation of the properties in the Appellants’ parcel CIS-MARA/LEMEK/173 post judgement, without considering the merits thereof and without any such invitation by the Respondent to so do, and hence arrived at a wrong decision.
4. Consequently, the Appellants pray that the Appeal be allowed and that the Judgment and Decree of the Tribunal dated 8 th November 2024, be vacated and entirely set aside . Further,, the Appellants seek an order substituting the impugned Judgment and Decree with an order dismissing the Respondent’s Reference in Nakuru BPRT No. 60 of 2020 , together with an order that the Respondent bears the costs of the proceedings before the Tribunal and of this Appeal.
5. The Appeal was canvassed by way of written submissions. The Appellants filed their written submissions dated 26 th March 2026, in which they submitted as follows:
6. The Appellants submitted that the Tribunal acted without jurisdiction in entertaining and determining the Respondent’s Reference. Their principal contention was that no Landlord-Tenant r elationship existed between the parties in respect of the property known as CIS-MARA/LEMEK/173 (hereinafter “the suit property ”). They maintained that although they are the registered proprietors of the suit property, the Respondent did not produce any lease , tenancy agreement , licence or other written instrument evidencing its alleged tenancy.
7. The Appellants further submitted that the Respondent itself admitted that it had been invited onto the suit property by Furahia Africa Promotions Limited , the Appellants’ lessee, without the Appellants’ approval or any tenancy agreement between the parties.
8. The Appellants further submitted that Furahia Africa Limited had a formal lease over the suit property which was the subject of Narok ELC Case No. 55 of 2018 – Samson Ololmaitai & 2 Others v Furahia Africa Limited . They drew the Tribunal’s attention to the judgment and decree delivered in that matter on 28 th July 2022 , which, according to them, resulted in the eviction of Furahia Africa Limited, from the suit property and contained permanent injunctive orders restraining the Defendant therein, together with its invitees, servants, agents, licensees and/or tenants, from remaining upon or dealing with the property.
9. Furter, the Appellants submitted that the said Judgmen t and Decree were binding upon the Tribunal, and that, by recognizing the Respondent as a tenant, and subsequently granting it rights of access and occupation over the suit property, the Tribunal effectively purported to overturn or circumvent the decree of this Court.
10. The Appellants invoked Article 163(7 ) of the Constitution, and the doctrine of stare decisis, relying, inter alia, on Rift Valley Sports Club v Patrick James Ocholla, Nakuru HCCA No. 172 of 2002 [2005] eKLR and Martin Nyaga Wambora v County Assembly of Embu & 37 Others [2015] eKLR ,in support of the proposition that Courts and tribunals are bound by decisions of superior courts.
11. The Appellants further contended that the Respondent’s own pleadings before the Tribunal disclosed that it was not in possession of the suit property. They submitted that in paragraph 4 of its Complaint dated 24 th March 2020 , the Respondent admitted that it was not in possession , and alleged instead that it had been prevented from accessing the premises. It was their argument that the Respondent could not establish the existence of a Controlled tenancy merely by asserting that it had been denied access to the property.
12. In that regard, the Appellants relied on Nashridas & Company Limited v Nyali Air Conditioning and Refrigeration Services Limited, Civil Appeal No. 205 of 1995 , and Tiwi Beach Hotel Ltd v Julian Ulrike Stamm for the proposition that the jurisdiction of the Business Premises Rent Tribunal is confined to matters falling within the scope of a controlled tenancy.
13. Further, they relied on Republic v Business Premises Rent Tribunal ex parte Karasha [1979] KLR 147 and Re Hebatulla Properties Ltd [1979] KLR 96 , for the proposition that the Tribunal could not assume jurisdiction over matters which were properly within the province of the ordinary courts, including claims founded on trespass where no controlled tenancy existed.
14. The Appellants also challenged the legality of the decree issued by the Tribunal. They contended that the Tribunal purported to issue a decree capable of being executed by itself, contrary to Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 . Reliance was placed on Olkejuado Teachers Credit & Savings Society Ltd v Chairman of the Co-operative Tribunal Nairobi [2005] eKLR, for the principle that a court or tribunal cannot confer jurisdiction upon itself where none exists. It was their submissions that the Tribunal’s purported self-executing decree was a nullity.
15. The Appellants maintained that the Respondent had no valid cause of action before the Tribunal because it had failed to produce evidence of the alleged tenancy. Further, that there was no written agreement between the parties, no termination clause that had been invoked, and no evidence demonstrating the terms of the alleged oral tenancy. They argued that, in the absence of a controlled tenancy, the Tribunal ought to have declined jurisdiction at the outset, rather than proceed to determine the merits of the Reference.
16. The Appellants further took issue with the Tribunal’s finding that a monthly rent of Kshs. 150,000/= had been agreed between the parties. They argued that no evidence had been produced to establish such agreement or the periodicity of the alleged rent. Further, that the Tribunal had improperly inferred a tenancy from the Respondent’s occupation of the premises notwithstanding the absence of the Appellants’ consent.
17. On the question of subletting and consent, the Appellants submitted that they had never given written consent to the Respondent to enter or occupy the suit property. They relied on New Calabash Limited v Joseph Odero [2018] eKLR, and argued that where a tenancy agreement requires the lessor’s written consent to a sub-tenancy, such consent cannot simply be presumed.
18. The Appellants also maintained that Furahia Africa Promotions Limited remained their lessee, and that the Respondent could not, without their consent, acquire rights against them merely by virtue of an arrangement with the lessee.
19. The Appellants further submitted that the Tribunal had contradicted its own previous decision in Muya & 2 Others v Nzyoki, Tribunal Case No. E747 of 2023 [2024] KEBPRT 83 (KLR) , in which, according to the Appellants, the same Tribunal had taken a different position concerning a similar issue. They contended that the inconsistency demonstrated that the impugned decision was erroneous and unsupported by the applicable law.
20. The Appellants challenged the Tribunal’s treatment of the proceedings as both a Reference and a Complaint. They submitted that the distinction was material because a party to a Reference has a statutory right of appeal under Section 15 of Cap. 301, whereas a mere complainant does not enjoy the same right. They relied on Re-Heptulla Properties Ltd [1979] eKLR and Mike Muli v Justus Mwandikwa Kilonzo & 4 Others [2022] eKLR in support of their submissions on the distinction.
21. The Appellants further submitted that the Tribunal had exceeded its jurisdiction by granting orders which, in their view, went beyond the reliefs properly available under the Act. They particularly challenged the order permitting the Respondent access to the suit property, contending that such an order was inconsistent with the decree issued by this Court in N arok ELC Case No. 55 of 2018. They argued that the Tribunal, being a subordinate tribunal, could not issue orders that had the effect of varying, defeating or circumventing orders of this Court.
22. The Appellants also relied on Gatanga General Store & 2 Others v Githere [1988] eKLR ,for the proposition that the powers conferred upon the Tribunal under Section 12(4) of Cap. 301 must be exercised within the statutory framework governing controlled tenancies. Further, that the Tribunal could not employ the general language of “complaint” in Section 12(4) to assume jurisdiction over a dispute which did not concern a controlled tenancy.
23. The Appellants further relied on the decision in G.H. Tanna & Sons Holding Limited & Another v Gathubuye, Environment and Land Appeal No. 6 of 2022 [2022] KEELCC 3155 (KLR) , where the Court considered the effect of proceedings before the Tribunal during the pendency of an appeal. That the circumstances of the present appeal similarly demonstrated the need for the Court to intervene and set aside the impugned orders. Reliance was sought on Banco Arabe v Bank of Uganda [1999] 1 EA 22 , for the broader principle that disputes ought, as far as possible, to be determined on their merits.
24. In conclusion, the Appellants submitted that the Respondent had failed to establish any legal basis upon which it could claim a tenancy over the suit property. Further, that the Respondent had never been a tenant of the Appellants and that the Tribunal had, in effect, created a tenancy where none existed.
25. The Appellants urged the Court to allow the Appeal, set aside the Judgment and Decree of the Tribunal dated 8 th November 2024 , and substitute the same with an order dismissing Nakuru BPRT Case No. 60 of 2020 , together with costs.
26. The Respondent opposed the Appeal vide submissions dated 18 th May 2026, and urged the Court to dismiss the same in its entirety. Its submissions were premised on the position that the Judgment and Decree of the Business Premises Rent Tribunal in Nakuru BPRT Case No. 60 of 2020, were well founded both in fact and in law.
27. The Respondent identified five broad issues for determination. Firstly , whether the Appellants were estopped from challenging the jurisdiction of the Tribunal, having previously asserted before the Environment and Land Court in Narok ELC No. 7 of 2020, that the dispute fell within the exclusive jurisdiction of the Business Premises Rent Tribunal .
28. Secondly, whether the oral tenancy between the parties constituted a controlled tenancy within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, notwithstanding the absence of a written lease.
29. Thirdly, whether the Appellants’ handwritten demand for Kshs. 2,000,000/= or vacant possession constituted a valid notice of termination.
30. Fourthly, whether the Tribunal acted within its statutory mandate in awarding Kshs. 2,000,000/= as general damages for the Respondent’s illegal eviction, harassment and trespass. Finally, whether the Tribunal had jurisdiction to issue a preliminary decree for valuation of the Respondent’s improvements and movable property and to enforce its orders under Section 14 of Cap. 301 .
31. On the question of jurisdiction, the Respondent submitted that the Appellants were estopped from re-litigating the jurisdiction of the Tribunal. It pointed out that the dispute had initially been instituted before the Environment and Land Court at Narok in ELC No. 7 of 2020. The Appellants had, by a Preliminary Objection dated 4 th March 2020 , expressly contended that the dispute arose from a landlord and tenant relationship, and that the proper forum was the Business Premises Rent Tribunal.
32. The Respondent further submitted that, following the said objection, the Environment and Land Court in Narok, in a ruling delivered on 13 th March 2020 , accepted the Appellants’ position that the suit was premised on a landlord and tenant relationship, found that the Court lacked jurisdiction, and directed the Respondent to file a Reference before the Tribunal. The Respondent thereafter complied with that order, and filed the Reference before the Tribunal on 24 th March 2020.
33. It was further submitted that when the Tribunal subsequently made orders in favour of the Respondent, the Appellants again challenged its jurisdiction by an application dated 30 th March 2021. That application was dismissed by the Tribunal on 14 th July 2021 . The Appellants appealed against that decision in Narok ELC Appeal No. 8 of 2021 , which Appeal was dismissed with costs to the Respondent vide a ruling delivered on 31 st January 2022.
34. On that basis, the Respondent submitted that the Appellants could not approbate and reprobate by first asserting that the dispute fell within the jurisdiction of the Tribunal, and thereafter upon receiving an adverse determination, contended that the Tribunal lacked jurisdiction.
35. Reliance was sought in the John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] eKLR , where the Court of Appeal discussed the doctrine of issue estoppel, and on the case of Railway Landing Services Ltd v Cooperative Bank of Kenya Ltd [2017] eKLR , for the proposition that a party who voluntarily submits to a forum’s jurisdiction and takes chances on the merits cannot subsequently challenge that jurisdiction.
36. The Respondent consequently maintained that the issue of the Tribunal’s jurisdiction had already been determined in the earlier proceedings, and could not properly be reopened in the present appeal.
37. On the existence of a controlled tenancy , the Respondent submitted that Section 2 of Cap. 301 expressly recognizes an oral tenancy. It was argued that the statutory definition of a “controlled tenancy” includes a tenancy of a shop, hotel or catering establishment which has not been reduced into writing. The absence of a written lease was therefore not fatal to the Respondent’s case.
38. The Respondent relied on the evidence placed before the Tribunal, including the Affidavit of its Director, Rahim Chatur, who deposed that in June 2016, the parties entered into an oral agreement under which the Respondent took over the Mara Wild Beast Lodge at a monthly rent of Kshs. 150,000/=, to be shared equally between the 1st and 2nd Appellants. It was submitted that the Respondent was also permitted to undertake substantial renovations to the premises.
39. The Respondent further relied on cheques and payment receipts demonstrating regular payment of rent directly to the Appellants over several years, which payments were accepted without objection. It also referred to photographic evidence showing substantial improvements to the premises, including construction of a swimming pool, upgrading of staff quarters, provision of beds for approximately fifty rooms, installation of a power generator, electric fencing and a gymnasium, at a cost exceeding Kshs. 40 million.
40. The Respondent further submitted that the Appellants’ own conduct was inconsistent with their subsequent assertion that no tenancy existed. In particular, the Appellants had caused auctioneers to issue a proclamation notice claiming rent arrears of Kshs. 14,921,706/=. The Respondent also argued that distress for rent was a remedy available against a tenant and that, by invoking that remedy, the Appellants themselves treated the Respondent as their tenant.
41. The Respondent also relied on the Appellants’ handwritten demand for Kshs. 2,000,000/= as backdated rent or vacation of the premises, arguing that the notice itself acknowledged the existence of the tenancy.
42. Further, that the Appellants were estopped from denying the tenancy after permitting the Respondent to remain in occupation for several years, accepting rent, permitting it to operate the business, changing the name of the lodge from “ Mara Wild Beast Lodge” to “ Mara Concord Game Lodge ” and allowing the Respondent to invest more than Kshs. 40 million in improvements without objection.
43. The Respondent relied on Section 120 of the Evidence Act, Cap. 80, and the decision in Titus Muiruri Doge v Kenya Canners Ltd [1980] eKLR , for the proposition that where a person is permitted to remain in occupation, and pays rent which is accepted, a tenancy by conduct may arise and the person accepting rent may subsequently be estopped from denying the tenancy.
44. With regard to the judgment in Narok ELC No. 55 of 2018 , the Respondent submitted that the Appellants’ reliance on that decision was misplaced. The Respondent contended that it was not a party to those proceedings, and that the judgment, which concerned a lease between the Appellants and Furahia Africa Ltd, could not bind the Respondent. It was argued that the Respondent’s tenancy arose independently, and directly between itself and the Appellants, and was not an assignment or sublease from Furahia Africa Ltd.
45. On the validity of the notice of termination, the Respondent submitted that Section 4(2) of Cap. 301 , read together with Regulation 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Forms and Procedure) Regulations, 1966, required a landlord seeking to terminate a controlled tenancy to issue the prescribed statutory notice. The Respondent argued that compliance with the prescribed form was mandatory and constituted a condition precedent to valid termination.
46. The Respondent contended that the Appellants’ notice was an undated handwritten demand for Kshs. 2,000,000/= in alleged backdated rent, failing which the Respondent would vacate the premises. The notice was not in the prescribed Form A and was therefore incapable of terminating the controlled tenancy.
47. Reliance was placed on Manaver N. Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 [1995] eKLR, where the Court of Appeal held that non-compliance with the prescribed statutory form renders a notice incapable of terminating a controlled tenancy.
48. The Respondent further submitted that the demand for backdated rent from 2016 to October 2019, did not constitute a lawful alteration of the terms of the tenancy under Section 4(2 ) of Cap. 301, and that there was no statutory basis for the retrospective demand.
49. On the award of damages, the Respondent submitted that the evidence before the Tribunal established that the Appellants had unlawfully interfered with its possession and business . It was contended that, on or about 31 st January 2020 , the Appellants caused armed individuals to invade the Respondent’s lodge, expel its employees and close down the business. The Appellants subsequently instructed auctioneers to levy distress for alleged rent arrears without a lawful basis.
50. The Respondent maintained that it had neither received a valid notice to vacate nor was there any court order authorizing its eviction. The conduct complained of consequently amounted to trespass, unlawful eviction and interference with the Respondent’s business.
51. The Respondent relied on Section 12(4) of Cap. 301 , and submitted that the Tribunal had jurisdiction to investigate complaints relating to a controlled tenancy, and to make such orders as it deemed fit. It further relied on Gatanga General Store v Githere [1988] eKLR , for the proposition that the Tribunal’s jurisdiction extends to complaints concerning harassment, obstruction and illegal eviction.
52. The Respondent defended the award of Kshs. 2,000,000/= as general damages, describing the amount as modest when considered against the losses allegedly occasioned by the Appellants’ conduct, including the forced closure of the business during peak season, refund of advance client reservations, loss or destruction of movable property, and the effective sterilization of investments exceeding Kshs. 40 million in improvements.
53. Finally, on the Tribunal’s preliminary decree, the Respondent submitted tha
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2. The dispute before the Tribunal arose from a Reference filed by the Respondent herein, Leo Investments Limited , on 26 th March 2020 , concerning the alleged tenancy over the property known as CIS-MARA/LEMEK/173 (hereinafter referred to as “the Suit Property ).
3. The Appellants, who were the 1 st , 2 nd and 3 rd Respondents respectively before the Tribunal, being dissatisfied with the entire Judgment and Decree of the Tribunal, preferred the present Appeal by a Memorandum of Appeal dated 6 th December 2024, and set out the following 22 grounds of Appeal:
(a) The Learned Chairman of the Tribunal Hon. Gakuhi Chege, together with the Member of the Tribunal, Hon. Joyce Osodo erred in law when they purported to issue a Decree dated 8 th November 2024 executable before the same Tribunal in the Reference before the BPRT when they had no jurisdiction to do so, inasmuch as any determination of the Reference by the Tribunal can only be enforceable upon adoption of the decision by a competent Court, pursuant to Section 14 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act.
(b) The Learned Panelists of the Tribunal ignored the binding Judgement and Decree of this Honourable Narok ELC Court dated 28 th July, 2022 in ELC 55 of 2018 (Samson olol Maitai & Others vs Furahia Africa Promotions Ltd) in which this Honourable ELC Court granted the Appellants permanent injunctive Orders against the Defendant therein, Furahia Africa Promotions Ltd under whom the Respondent herein (Leo Investments Ltd) purported to be a subtenant of, yet was expressly barred from the suit property by the said Decree and Order of this Court in Narok ELC 55 of 2018.
(c) The Learned Panelists of the Tribunal by their Judgement and Decree appealed against openly breached and violated the doctrine of stare decisis espoused in Article 163(7) of the Constitution of Kenya, in that the Decree and judgement of this Honourable ELC Court dated 28 th July 2022 in Narok ELC 55 of 2018 cited to them and produced in evidence at the trial before the Tribunal was final in respect of the Lease over CIS-MARA/LEMEK/173 under which the Respondent herein purported to claim a non-existent tenancy. They thereby erred and acted ultra vires the said provision in the Constitution of Kenya.
(d) The Learned Panelists of the Tribunal in issuing their judgement and Decree herein appealed against (with respect) and ordering the Respondent herein to enter upon the Appellants’ parcel CIS-MARA/LEMEK/173 effectively purported to act in an appellate capacity against the Decree of this Honourable ELC Court in Narok ELC No. 55 of 2018, which was a violation of Article 165(6) of the Constitution of Kenya. Such
(e) The Learned Panelists of the Tribunal erred in law and in fact when they found that the Respondent herein Leo Investments Ltd was allegedly a tenant of the Appellants in respect of the parcel CIS-MARA/LEMEK/173 when no evidence of any Lease, Tenancy, Sub-Tenancy or Sub-Lease was produced by the Respondents to prove that such a tenancy ever existed, or exists between the Respondent and the Appellants, and in any event the terms thereof were never stated on oath or produced in evidence by the Respondent.
(f) The Learned Panelists of the Tribunal erred in law and in fact when they purported that the demand letter for rent arrears under the Distress for Rent Act, written to Furahia Africa Promotions Ltd as the LESSEE of the Appellants in respect of the Appellants’ parcel CIS-MARA/LEMEK/173 and copied to the Respondent was null and void thereby exonerating Furahia Africa Promotions Ltd the obligation to remit the Appellants’ rent arrears in a manner that was an oblique appeal against this Honourable ELC Court’s decision in Narok ELC 55 of 2018 decided on 28 th July 2022.
(g) The Learned Panelists of the Tribunal erred in law and in fact were openly biased against the Appellants, and they irrationally favored the Respondent when they made findings in their Judgement appealed against without any evidence tendered by the Respondent in support of the same.
(h) The Learned Panelists of the Tribunal were openly biased against the Appellants and they sunk into the arena of litigation and argued the Respondent’s unsubstantiated allegations, and rendered a judgement and Decree containing pleas never requested for or pleaded by the Respondent as contained in their judgement and Decree dated 8 th November 2024.
(i) The Learned Panelists of the Tribunal were openly biased against the Appellants as they contradicted themselves in the findings regarding the Respondent’s purported tenancy over the Appellants’ parcel CIS-MARA/LEMEK/173 as contained in the Judgement appealed against, even going against their own decision in the case of Muya & 2 others v Nzyoki (Tribunal Case E747 of 2023) [2024] KEBPRT 83 (KLR) (2 February 2024) (Ruling), involving similar facts in a manner that violated Article 27(4) of the Constitution of Kenya, thereby rendering the impugned Judgement and Decree null and void.
(j) The Learned Panelists of the Tribunal erred in law and in fact held that whereas there was no express consent by the Appellants allowing any construction/repairs by the Respondent to be carried on their suit property CIS-MARA/LEMEK/173 when such Consent must by law be expressed in writing, and none was produced before the Tribunal by the Respondent, the alleged improvements were allegedly warranted. They thereby arrived at a wrong decision in law and in fact.
(k) The Learned Panelists of the Tribunal erred in law and in fact when they issued a Decree for its own enforcement in furtherance of the impugned Judgement issued on 8 th November 2024, in breach of Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act by reason of which the terms of enforcement of the Judgement by the Tribunal itself in the purported Decree are null and void ab initio.
(l) The Learned Panelists of the Tribunal erred in law and in fact when they held that the Respondent had proved its Reference before the BPRT against the Appellants, when in fact it had not done so, and there was no lawful Amended Reference filed with the BPRT or served on the Appellants such as formed the purported decision appealed against.
(m) The Learned Panelists of the Tribunal erred in law and in fact in holding that the Appellants were landlords of the Respondent herein and yet there was no evidence of the alleged landlord-tenant relationship on the facts presented during the trial.
(n) The Learned Panelists of the Tribunal erred in law and in fact in ignoring the binding authorities tendered to them by the Appellants, and in totally ignoring the Appellants’ submissions that pointed to the nullity of the Respondent’s Reference ab initio.
(o) The Learned Panelists of the Tribunal erred in law and in fact when they held that the issue of the alleged tenancy of the Respondent over the Appellants’ parcel CIS-MARA/LEMEK/173 had been decided by this Honourable Narok ELC Court in Narok ELC Appeal No E07 of 2020 when in fact no such material finding of fact had been established or rendered, and the ELC Court in the said decision had only rendered itself on the Preliminary Objection by the Appellants that the Respondent having already lodged the subject Reference then the ELC Court was divested of jurisdiction (as opposed to the ELC making an actual finding on the alleged tenancy of the Respondent). They therefore erred in spurning and disregarding the weight and span of the Appellants’ evidence of the lack of a tenant-landlord relationship tabled before them at the trial.
(p) The Learned Panelists of the Tribunal erred in law and in fact in finding the Appellants had allegedly evicted the Respondent from the property CIS-MARA/LEMEK/173 when no such eviction ever took place and no evidence of such event was ever tendered at the trial.
(q) The Learned Panelists of the Tribunal erred in law and in fact in finding the Appellants had allegedly agreed to a rent in respect of the Appellants’ property CIS-MARA/LEMEK/173 of Ksh. 150,000/= without any periodic explanation thereof, and when no such evidence was tendered or proven by the Respondent.
(r) The Learned Panelists of the Tribunal erred in law and in fact in allowing the Respondent’s Reference filed on 26 th March 2020 when no positive orders were therein prayed for, as contained in the Judgement appealed against and as enumerated in the BPRT’s Decree dated 8 th November 2024. The said judgement and Decree dated 8 th November 2024 are a nullity in toto, and the findings thereof ultra vires the Landlord and Tenants (Shops, hotels and catering establishment Act Cap 301 Laws of Kenya.
(s) The Learned Panelists of the Tribunal erred in law and in fact when they held that the Appellants had allegedly hired goons to evict the Respondent, yet in the same Judgement held that the Respondent had alleged that it shut down its business. The Tribunal thus arrived at a decision not backed by facts.
(t) The Learned Panelists of the Tribunal erred in law and in fact in their judgement and Decree in assessing damages in the sum of Ksh. 2,000,000/= for alleged trespass by the Appellants on their own property CIS-MARA/LEMEK/173, when no such evidence was led or tendered by the Respondent at the trial. The said award is a nullity ab initio.
(u) The Learned Panelists of the Tribunal erred in law and in fact when they dealt with the Reference before them as a Complaint alternately and indiscriminately, thereby prejudicing the Appellants and arrived at an unlawful decision.
(v) The Learned Panelists of the Tribunal erred in law and in fact when they ordered in their Judgement and Decree appealed against a purported valuation of the properties in the Appellants’ parcel CIS-MARA/LEMEK/173 post judgement, without considering the merits thereof and without any such invitation by the Respondent to so do, and hence arrived at a wrong decision.
4. Consequently, the Appellants pray that the Appeal be allowed and that the Judgment and Decree of the Tribunal dated 8 th November 2024, be vacated and entirely set aside . Further,, the Appellants seek an order substituting the impugned Judgment and Decree with an order dismissing the Respondent’s Reference in Nakuru BPRT No. 60 of 2020 , together with an order that the Respondent bears the costs of the proceedings before the Tribunal and of this Appeal.
5. The Appeal was canvassed by way of written submissions. The Appellants filed their written submissions dated 26 th March 2026, in which they submitted as follows:
6. The Appellants submitted that the Tribunal acted without jurisdiction in entertaining and determining the Respondent’s Reference. Their principal contention was that no Landlord-Tenant r elationship existed between the parties in respect of the property known as CIS-MARA/LEMEK/173 (hereinafter “the suit property ”). They maintained that although they are the registered proprietors of the suit property, the Respondent did not produce any lease , tenancy agreement , licence or other written instrument evidencing its alleged tenancy.
7. The Appellants further submitted that the Respondent itself admitted that it had been invited onto the suit property by Furahia Africa Promotions Limited , the Appellants’ lessee, without the Appellants’ approval or any tenancy agreement between the parties.
8. The Appellants further submitted that Furahia Africa Limited had a formal lease over the suit property which was the subject of Narok ELC Case No. 55 of 2018 – Samson Ololmaitai & 2 Others v Furahia Africa Limited . They drew the Tribunal’s attention to the judgment and decree delivered in that matter on 28 th July 2022 , which, according to them, resulted in the eviction of Furahia Africa Limited, from the suit property and contained permanent injunctive orders restraining the Defendant therein, together with its invitees, servants, agents, licensees and/or tenants, from remaining upon or dealing with the property.
9. Furter, the Appellants submitted that the said Judgmen t and Decree were binding upon the Tribunal, and that, by recognizing the Respondent as a tenant, and subsequently granting it rights of access and occupation over the suit property, the Tribunal effectively purported to overturn or circumvent the decree of this Court.
10. The Appellants invoked Article 163(7 ) of the Constitution, and the doctrine of stare decisis, relying, inter alia, on Rift Valley Sports Club v Patrick James Ocholla, Nakuru HCCA No. 172 of 2002 [2005] eKLR and Martin Nyaga Wambora v County Assembly of Embu & 37 Others [2015] eKLR ,in support of the proposition that Courts and tribunals are bound by decisions of superior courts.
11. The Appellants further contended that the Respondent’s own pleadings before the Tribunal disclosed that it was not in possession of the suit property. They submitted that in paragraph 4 of its Complaint dated 24 th March 2020 , the Respondent admitted that it was not in possession , and alleged instead that it had been prevented from accessing the premises. It was their argument that the Respondent could not establish the existence of a Controlled tenancy merely by asserting that it had been denied access to the property.
12. In that regard, the Appellants relied on Nashridas & Company Limited v Nyali Air Conditioning and Refrigeration Services Limited, Civil Appeal No. 205 of 1995 , and Tiwi Beach Hotel Ltd v Julian Ulrike Stamm for the proposition that the jurisdiction of the Business Premises Rent Tribunal is confined to matters falling within the scope of a controlled tenancy.
13. Further, they relied on Republic v Business Premises Rent Tribunal ex parte Karasha [1979] KLR 147 and Re Hebatulla Properties Ltd [1979] KLR 96 , for the proposition that the Tribunal could not assume jurisdiction over matters which were properly within the province of the ordinary courts, including claims founded on trespass where no controlled tenancy existed.
14. The Appellants also challenged the legality of the decree issued by the Tribunal. They contended that the Tribunal purported to issue a decree capable of being executed by itself, contrary to Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 . Reliance was placed on Olkejuado Teachers Credit & Savings Society Ltd v Chairman of the Co-operative Tribunal Nairobi [2005] eKLR, for the principle that a court or tribunal cannot confer jurisdiction upon itself where none exists. It was their submissions that the Tribunal’s purported self-executing decree was a nullity.
15. The Appellants maintained that the Respondent had no valid cause of action before the Tribunal because it had failed to produce evidence of the alleged tenancy. Further, that there was no written agreement between the parties, no termination clause that had been invoked, and no evidence demonstrating the terms of the alleged oral tenancy. They argued that, in the absence of a controlled tenancy, the Tribunal ought to have declined jurisdiction at the outset, rather than proceed to determine the merits of the Reference.
16. The Appellants further took issue with the Tribunal’s finding that a monthly rent of Kshs. 150,000/= had been agreed between the parties. They argued that no evidence had been produced to establish such agreement or the periodicity of the alleged rent. Further, that the Tribunal had improperly inferred a tenancy from the Respondent’s occupation of the premises notwithstanding the absence of the Appellants’ consent.
17. On the question of subletting and consent, the Appellants submitted that they had never given written consent to the Respondent to enter or occupy the suit property. They relied on New Calabash Limited v Joseph Odero [2018] eKLR, and argued that where a tenancy agreement requires the lessor’s written consent to a sub-tenancy, such consent cannot simply be presumed.
18. The Appellants also maintained that Furahia Africa Promotions Limited remained their lessee, and that the Respondent could not, without their consent, acquire rights against them merely by virtue of an arrangement with the lessee.
19. The Appellants further submitted that the Tribunal had contradicted its own previous decision in Muya & 2 Others v Nzyoki, Tribunal Case No. E747 of 2023 [2024] KEBPRT 83 (KLR) , in which, according to the Appellants, the same Tribunal had taken a different position concerning a similar issue. They contended that the inconsistency demonstrated that the impugned decision was erroneous and unsupported by the applicable law.
20. The Appellants challenged the Tribunal’s treatment of the proceedings as both a Reference and a Complaint. They submitted that the distinction was material because a party to a Reference has a statutory right of appeal under Section 15 of Cap. 301, whereas a mere complainant does not enjoy the same right. They relied on Re-Heptulla Properties Ltd [1979] eKLR and Mike Muli v Justus Mwandikwa Kilonzo & 4 Others [2022] eKLR in support of their submissions on the distinction.
21. The Appellants further submitted that the Tribunal had exceeded its jurisdiction by granting orders which, in their view, went beyond the reliefs properly available under the Act. They particularly challenged the order permitting the Respondent access to the suit property, contending that such an order was inconsistent with the decree issued by this Court in N arok ELC Case No. 55 of 2018. They argued that the Tribunal, being a subordinate tribunal, could not issue orders that had the effect of varying, defeating or circumventing orders of this Court.
22. The Appellants also relied on Gatanga General Store & 2 Others v Githere [1988] eKLR ,for the proposition that the powers conferred upon the Tribunal under Section 12(4) of Cap. 301 must be exercised within the statutory framework governing controlled tenancies. Further, that the Tribunal could not employ the general language of “complaint” in Section 12(4) to assume jurisdiction over a dispute which did not concern a controlled tenancy.
23. The Appellants further relied on the decision in G.H. Tanna & Sons Holding Limited & Another v Gathubuye, Environment and Land Appeal No. 6 of 2022 [2022] KEELCC 3155 (KLR) , where the Court considered the effect of proceedings before the Tribunal during the pendency of an appeal. That the circumstances of the present appeal similarly demonstrated the need for the Court to intervene and set aside the impugned orders. Reliance was sought on Banco Arabe v Bank of Uganda [1999] 1 EA 22 , for the broader principle that disputes ought, as far as possible, to be determined on their merits.
24. In conclusion, the Appellants submitted that the Respondent had failed to establish any legal basis upon which it could claim a tenancy over the suit property. Further, that the Respondent had never been a tenant of the Appellants and that the Tribunal had, in effect, created a tenancy where none existed.
25. The Appellants urged the Court to allow the Appeal, set aside the Judgment and Decree of the Tribunal dated 8 th November 2024 , and substitute the same with an order dismissing Nakuru BPRT Case No. 60 of 2020 , together with costs.
26. The Respondent opposed the Appeal vide submissions dated 18 th May 2026, and urged the Court to dismiss the same in its entirety. Its submissions were premised on the position that the Judgment and Decree of the Business Premises Rent Tribunal in Nakuru BPRT Case No. 60 of 2020, were well founded both in fact and in law.
27. The Respondent identified five broad issues for determination. Firstly , whether the Appellants were estopped from challenging the jurisdiction of the Tribunal, having previously asserted before the Environment and Land Court in Narok ELC No. 7 of 2020, that the dispute fell within the exclusive jurisdiction of the Business Premises Rent Tribunal .
28. Secondly, whether the oral tenancy between the parties constituted a controlled tenancy within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, notwithstanding the absence of a written lease.
29. Thirdly, whether the Appellants’ handwritten demand for Kshs. 2,000,000/= or vacant possession constituted a valid notice of termination.
30. Fourthly, whether the Tribunal acted within its statutory mandate in awarding Kshs. 2,000,000/= as general damages for the Respondent’s illegal eviction, harassment and trespass. Finally, whether the Tribunal had jurisdiction to issue a preliminary decree for valuation of the Respondent’s improvements and movable property and to enforce its orders under Section 14 of Cap. 301 .
31. On the question of jurisdiction, the Respondent submitted that the Appellants were estopped from re-litigating the jurisdiction of the Tribunal. It pointed out that the dispute had initially been instituted before the Environment and Land Court at Narok in ELC No. 7 of 2020. The Appellants had, by a Preliminary Objection dated 4 th March 2020 , expressly contended that the dispute arose from a landlord and tenant relationship, and that the proper forum was the Business Premises Rent Tribunal.
32. The Respondent further submitted that, following the said objection, the Environment and Land Court in Narok, in a ruling delivered on 13 th March 2020 , accepted the Appellants’ position that the suit was premised on a landlord and tenant relationship, found that the Court lacked jurisdiction, and directed the Respondent to file a Reference before the Tribunal. The Respondent thereafter complied with that order, and filed the Reference before the Tribunal on 24 th March 2020.
33. It was further submitted that when the Tribunal subsequently made orders in favour of the Respondent, the Appellants again challenged its jurisdiction by an application dated 30 th March 2021. That application was dismissed by the Tribunal on 14 th July 2021 . The Appellants appealed against that decision in Narok ELC Appeal No. 8 of 2021 , which Appeal was dismissed with costs to the Respondent vide a ruling delivered on 31 st January 2022.
34. On that basis, the Respondent submitted that the Appellants could not approbate and reprobate by first asserting that the dispute fell within the jurisdiction of the Tribunal, and thereafter upon receiving an adverse determination, contended that the Tribunal lacked jurisdiction.
35. Reliance was sought in the John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] eKLR , where the Court of Appeal discussed the doctrine of issue estoppel, and on the case of Railway Landing Services Ltd v Cooperative Bank of Kenya Ltd [2017] eKLR , for the proposition that a party who voluntarily submits to a forum’s jurisdiction and takes chances on the merits cannot subsequently challenge that jurisdiction.
36. The Respondent consequently maintained that the issue of the Tribunal’s jurisdiction had already been determined in the earlier proceedings, and could not properly be reopened in the present appeal.
37. On the existence of a controlled tenancy , the Respondent submitted that Section 2 of Cap. 301 expressly recognizes an oral tenancy. It was argued that the statutory definition of a “controlled tenancy” includes a tenancy of a shop, hotel or catering establishment which has not been reduced into writing. The absence of a written lease was therefore not fatal to the Respondent’s case.
38. The Respondent relied on the evidence placed before the Tribunal, including the Affidavit of its Director, Rahim Chatur, who deposed that in June 2016, the parties entered into an oral agreement under which the Respondent took over the Mara Wild Beast Lodge at a monthly rent of Kshs. 150,000/=, to be shared equally between the 1st and 2nd Appellants. It was submitted that the Respondent was also permitted to undertake substantial renovations to the premises.
39. The Respondent further relied on cheques and payment receipts demonstrating regular payment of rent directly to the Appellants over several years, which payments were accepted without objection. It also referred to photographic evidence showing substantial improvements to the premises, including construction of a swimming pool, upgrading of staff quarters, provision of beds for approximately fifty rooms, installation of a power generator, electric fencing and a gymnasium, at a cost exceeding Kshs. 40 million.
40. The Respondent further submitted that the Appellants’ own conduct was inconsistent with their subsequent assertion that no tenancy existed. In particular, the Appellants had caused auctioneers to issue a proclamation notice claiming rent arrears of Kshs. 14,921,706/=. The Respondent also argued that distress for rent was a remedy available against a tenant and that, by invoking that remedy, the Appellants themselves treated the Respondent as their tenant.
41. The Respondent also relied on the Appellants’ handwritten demand for Kshs. 2,000,000/= as backdated rent or vacation of the premises, arguing that the notice itself acknowledged the existence of the tenancy.
42. Further, that the Appellants were estopped from denying the tenancy after permitting the Respondent to remain in occupation for several years, accepting rent, permitting it to operate the business, changing the name of the lodge from “ Mara Wild Beast Lodge” to “ Mara Concord Game Lodge ” and allowing the Respondent to invest more than Kshs. 40 million in improvements without objection.
43. The Respondent relied on Section 120 of the Evidence Act, Cap. 80, and the decision in Titus Muiruri Doge v Kenya Canners Ltd [1980] eKLR , for the proposition that where a person is permitted to remain in occupation, and pays rent which is accepted, a tenancy by conduct may arise and the person accepting rent may subsequently be estopped from denying the tenancy.
44. With regard to the judgment in Narok ELC No. 55 of 2018 , the Respondent submitted that the Appellants’ reliance on that decision was misplaced. The Respondent contended that it was not a party to those proceedings, and that the judgment, which concerned a lease between the Appellants and Furahia Africa Ltd, could not bind the Respondent. It was argued that the Respondent’s tenancy arose independently, and directly between itself and the Appellants, and was not an assignment or sublease from Furahia Africa Ltd.
45. On the validity of the notice of termination, the Respondent submitted that Section 4(2) of Cap. 301 , read together with Regulation 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Forms and Procedure) Regulations, 1966, required a landlord seeking to terminate a controlled tenancy to issue the prescribed statutory notice. The Respondent argued that compliance with the prescribed form was mandatory and constituted a condition precedent to valid termination.
46. The Respondent contended that the Appellants’ notice was an undated handwritten demand for Kshs. 2,000,000/= in alleged backdated rent, failing which the Respondent would vacate the premises. The notice was not in the prescribed Form A and was therefore incapable of terminating the controlled tenancy.
47. Reliance was placed on Manaver N. Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited, Civil Appeal No. 203 of 1994 [1995] eKLR, where the Court of Appeal held that non-compliance with the prescribed statutory form renders a notice incapable of terminating a controlled tenancy.
48. The Respondent further submitted that the demand for backdated rent from 2016 to October 2019, did not constitute a lawful alteration of the terms of the tenancy under Section 4(2 ) of Cap. 301, and that there was no statutory basis for the retrospective demand.
49. On the award of damages, the Respondent submitted that the evidence before the Tribunal established that the Appellants had unlawfully interfered with its possession and business . It was contended that, on or about 31 st January 2020 , the Appellants caused armed individuals to invade the Respondent’s lodge, expel its employees and close down the business. The Appellants subsequently instructed auctioneers to levy distress for alleged rent arrears without a lawful basis.
50. The Respondent maintained that it had neither received a valid notice to vacate nor was there any court order authorizing its eviction. The conduct complained of consequently amounted to trespass, unlawful eviction and interference with the Respondent’s business.
51. The Respondent relied on Section 12(4) of Cap. 301 , and submitted that the Tribunal had jurisdiction to investigate complaints relating to a controlled tenancy, and to make such orders as it deemed fit. It further relied on Gatanga General Store v Githere [1988] eKLR , for the proposition that the Tribunal’s jurisdiction extends to complaints concerning harassment, obstruction and illegal eviction.
52. The Respondent defended the award of Kshs. 2,000,000/= as general damages, describing the amount as modest when considered against the losses allegedly occasioned by the Appellants’ conduct, including the forced closure of the business during peak season, refund of advance client reservations, loss or destruction of movable property, and the effective sterilization of investments exceeding Kshs. 40 million in improvements.
53. Finally, on the Tribunal’s preliminary decree, the Respondent submitted tha
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