https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3813

Diriye v Silver Dash Ltd & another (Environment and Land Appeal E061 of 2025) [2026] KEELC 3813 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEELC 3813 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E061 of 2025 EK Wabwoto, J June 19, 2026 Between AbdiKhani Abdi Diriye Appellant and Silver Dash Limited 1st Respondent Abdi Issack Mohamed 2nd Respondent (Being an Appeal from the Ruling and Orders of the Business Premises Rent Tribunal at Nairobi by the Honourable Chairperson Cyprian Mugambi in Tribunal Case No. E1234 of 2024, dated and delivered on the 14th of March 2025) Judgment Introduction 1.This judgment is in respect to an appeal filed on 27th March 2025 by Abdikhani Abdi Diriye (the Appellant) against Silver Dash Limited (1st Respondent) and Abdi Issack Mohamed (2nd Respondent). The appeal challenges the Ruling and Orders delivered on 14th March 2025 by Hon. Cyprian Mugambi, Chairperson of the Business Premises Rent Tribunal at Nairobi, in Tribunal Case No. E1234 of 2024. By that Ruling, the Tribunal dismissed the Appellant's Application dated 11th November 2024 together with all interlocutory orders made thereunder, dismissed the Appellant's Reference, and simultaneously dismissed the 1st Respondent's counterclaim for alleged rent arrears of Kshs. 400,064/=. 2.The Memorandum of Appeal dated 27th March 2025 raises five grounds, namely: (i) failure by the Tribunal to consider all material evidence on record; (ii) error in finding that the Appellant's claim was overtaken by events; (iii) error in deeming the tenancy ambiguous and unenforceable; (iv) error in validating the 1st Respondent's self-help repossession of the premises; and (v) failure to grant equitable relief despite the Appellant's demonstrated investment and the 1st Respondent's deliberate frustration of the tenancy. 3.The Appellant was represented by Garane & Somane Advocates who filed written submissions dated 21st November 2025. The 1st Respondent was represented by D.C. Rotich & Associates Advocates who filed written submissions dated 16th February 2026. The 2nd Respondent filed no submissions. I have carefully considered all the pleadings, the record of appeal, and the written submissions of both parties. Background 4.On 15th May 2024, the Appellant acquired occupation rights to Shop No. GB09 at Shujaa Mall, Nairobi, through a transfer from one Shafii Mohamed Abdullahi. The 1st Respondent, Silver Dash Limited, being the landlord of Shujaa Mall, acknowledged the transfer and issued an acceptance letter of even date. At the time of the transfer, the payment of Kshs. 398,708/= comprising goodwill, a deposit, and generator fees had been made by the Appellant's predecessor and was acknowledged by the 1st Respondent in its own annexure marked SDL-1. 5.Despite repeated requests by the Appellant, the 1st Respondent failed to issue a formal lease agreement. The Appellant was provided with an offer letter which he signed in good faith. Thereafter, the 1st Respondent sought to impose a daily penalty of Kshs. 5,000/= for late rent payment, purportedly arising from a lease that had never been executed by or disclosed to the Appellant. 6.From July 2024, the 1st Respondent restricted the Appellant's access to the premises, including disconnecting electricity supply, thereby preventing the Appellant from carrying on business. The 1st Respondent also alleged rent arrears of Kshs. 400,064/= based on the undisclosed and unsigned lease. 7.On 11th November 2024, the 1st Respondent repossessed the premises without notice or Tribunal authority, thereby locking out the Appellant and his stock. On the same date, the 1st Respondent purported to execute a fresh lease agreement with the 2nd Respondent, Abdi Issack Mohamed. 8.In response, the Appellant filed an Application dated 11th November 2024 before the Business Premises Rent Tribunal seeking injunctive relief. The Tribunal granted ex parte orders on 12th November 2024 and unconditional orders on 13th November 2024. Despite service, the 1st Respondent refused and/or failed to comply. A further application dated 18th November 2024 seeking enforcement through the OCS Kilimani Police Station and repossession of the premises was granted on 27th November 2024 but was effectively vacated on 3rd December 2024 when the Tribunal, at the instance of another judicial officer, stayed all prior orders pending hearing of the 1st Respondent's application. 9.On 12th February 2025, the 2nd Respondent applied to be joined as an interested party on the basis of his lease with the 1st Respondent dated 11th November 2024, asserting that he was in actual possession of the suit premises. The matter was heard on 21st February 2025 and the Tribunal delivered its Ruling on 14th March 2025, dismissing all applications and the Reference. 10.On 11th December 2024, during inter partes proceedings, counsel for the 1st Respondent had conceded before the Tribunal that no party had yet taken possession of the suit premises. On the strength of that concession, by consent of all parties, the Tribunal issued a status quo order restraining any party from taking possession pending delivery of its Ruling. Notwithstanding this order, the 2nd Respondent subsequently took possession of the premises. Issues for determination 11.Distilling the grounds of appeal and the submissions of the parties, the following five issues arise for determination:i.Whether the Tribunal erred in failing to consider all material evidence on record, including the Appellant's Supplementary Affidavit and the concession and status quo order of 11th December 2024.ii.Whether the Tribunal erred in finding that the Appellant's claim was overtaken by events.iii.Whether the Tribunal erred in holding that the tenancy was ambiguous and unenforceable.iv.Whether the Tribunal erred in validating, expressly or by implication, the 1st Respondent's self-help repossession of the premises on 11th November 2024.v.Whether the Appellant is entitled to equitable and/or restitutionary relief, and if so, in what form. Analysis and determination (i) Standard of Appellate Review 12.This Court sits as a first appellate court from the Business Premises Rent Tribunal. The settled standard on first appeal requires the Court to re-evaluate the evidence on record and to reach its own independent conclusions, while remaining alive to the fact that it did not see or hear the witnesses. This position was affirmed in Kanyuira v Kenya Airports Authority [2021] KESC 7 (KLR), where the Court stated that on appeal the appellate court is concerned with the question whether the lower court has appreciated the evidence properly and whether the law has been interpreted correctly. 13.Where the Tribunal has misdirected itself on the law, failed to take into account material evidence, or reached a conclusion that no reasonable tribunal could have reached on the facts, this Court is not only empowered but obliged to intervene. With those principles in mind, I turn to the issues. (ii) Whether the Tribunal Erred in Failing to Consider All Material Evidence 14.The Appellant contends that the Tribunal ignored two critical pieces of evidence: first, the Appellant's Supplementary Affidavit dated 5th March 2025, which directly rebutted the 2nd Respondent's assertion of possession; and second, the concession by the 1st Respondent's counsel on 11th December 2024 that no party had taken possession of the premises and the consequent status quo order issued by the Tribunal itself. 15.The duty of a quasi-judicial body to engage with all material evidence placed before it is settled. Article 50(1) of the Constitution of Kenya, 2010 guarantees the right to a fair hearing before an independent and impartial tribunal. Section 4(g) of the Fair Administrative Action Act, 2015 mandates that a decision-maker consider all information, materials, and evidence relevant to the matter. Where material evidence is placed before a tribunal and that tribunal proceeds to decide as though it does not exist, the resultant decision is tainted with illegality. In Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR, the Court of Appeal held that failure to consider relevant matters or taking into account irrelevant considerations renders a decision irrational and susceptible to being set aside. 16.Further, the principle that unrebutted averments in an affidavit must be accepted as true is well established. In Kennedy Atieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited [2010] eKLR, the Court held that where the respondent files only grounds of opposition which address issues of law without a replying affidavit rebutting factual averments, those averments must be taken as true. 17.In the present case, the 1st Respondent's counsel's concession on 11th December 2024 was recorded by the Tribunal. That concession that no party had taken possession of the premises was made in open court and formed the direct basis upon which the Tribunal issued a status quo order by consent. A concession of fact made by counsel in open court and acted upon by a tribunal binds the party making it. Once the Tribunal recorded that concession and issued a status quo order in consequence, those proceedings constituted an integral and binding part of the record. The Tribunal was not at liberty to proceed, in its final Ruling, as though neither the concession nor the order existed. 18.The Appellant's Supplementary Affidavit dated 5th March 2025 directly challenged the 2nd Respondent's claim to possession, arguing that the 2nd Respondent's alleged lease dated 11th November 2024 was executed in blatant defiance of due process and in contempt of the Tribunal's earlier orders. The 1st Respondent did not file a further replying affidavit dealing with those factual averments on oath. The Ruling at paragraphs 13 to 15 acknowledges the 2nd Respondent's lease but fails to interrogate its legality in the context of the subsisting status quo order. This constitutes a failure to engage with material evidence and amounts to an error of law. 19.I find that the Tribunal erred in law and fact by failing to give due consideration to the Appellant's Supplementary Affidavit and by proceeding as though the concession and the status quo order of 11th December 2024 were irrelevant to the determination. This ground of appeal succeeds. (iii) Whether the Tribunal Erred in Finding that the Claim was Overtaken by Events 20.The Tribunal's finding at paragraph 15 of its Ruling that the Appellant's claim was overtaken by events was premised on the view that the 1st Respondent had already repossessed the premises on 11th November 2024, and that the subsequent leasing of those premises to the 2nd Respondent rendered the Appellant's prayers incapable of enforcement. 21.This reasoning is flawed in two material respects. First, it proceeds on the assumption that an act done in violation of the law can lawfully extinguish the rights of an aggrieved party. It cannot. A party cannot rely upon the fruits of its own illegality to defeat a pending claim. Secondly, the 1st Respondent's repossession on 11th November 2024 was the very wrong that precipitated the Tribunal proceedings. To permit that wrong to operate as a bar to relief would be to reward the wrongdoer and penalise the victim an outcome fundamentally inconsistent with the purpose of Cap. 301. 22.The doctrine of continuing breach is relevant here. The Appellant submits correctly that the denial of his right to possession and quiet enjoyment was not a once-and-for-all event. It persisted from the date of repossession, was compounded by the Tribunal's failure to enforce its own orders, and was further aggravated when the 2nd Respondent took possession in defiance of the status quo order. A continuing wrong does not moot a claim; it amplifies it. Each successive day on which the Appellant was denied access to his business premises constituted a fresh breach. 23.More critically, the status quo order of 11th December 2024 was the Tribunal's own mechanism for preserving the subject matter of the dispute pending a substantive ruling. When the 2nd Respondent with the connivance of the 1st Respondent took possession of the premises in breach of that order, the Tribunal was not absolved of its duty to enforce its own orders and to remedy the breach. A Tribunal cannot issue a status quo order, stand by while that order is violated, and then treat the post-violation state of affairs as the legal reality upon which to base its final determination. To do so is an abdication of jurisdiction. 24.The 1st Respondent's submission that the Appellant prayed only for injunctive relief against eviction and did not specifically pray for enforcement of the status quo order does not assist. The Tribunal's jurisdiction under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301) is remedial and protective. Once the substratum of the dispute the Appellant's tenancy rights was before the Tribunal, the Tribunal was obliged to deal with the totality of the wrong, not merely the precise form of words in the initial application. To hold otherwise would reward drafting technicalities over substantive justice, contrary to Article 159(2)(d) of the Constitution. 25.I find that the Tribunal erred in law in holding that the Appellant's claim was overtaken by events. This ground of appeal succeeds. (iv) Whether the Tribunal Erred in Holding the Tenancy Ambiguous and Unenforceable 26.This is perhaps the most important issue in the appeal. The Tribunal, at paragraph 12 of its Ruling, found the tenancy ambiguous and unenforceable on account of the absence of a signed lease agreement. The 1st Respondent defends this finding on the basis that, without definitive lease terms, the Tribunal had no apparatus with which to enforce the tenancy or adjudicate on the arrears claimed. 27.That reasoning cannot stand in the face of Section 2 of Cap. 301, which expressly defines a "controlled tenancy" to include a tenancy that is not reduced to writing. The entire legislative purpose of Cap. 301 is to protect tenants in business premises, particularly in circumstances where landlords fail to formalise tenancies in writing or seek to exploit that informality. A statutory framework designed to protect unwritten tenancies cannot be defeated by the very landlord conduct that the statute was enacted to curb. To hold otherwise would be to read the protective provisions of Cap. 301 out of existence. 28.The uncontested evidence before the Tribunal established the following facts: (a) the Appellant lawfully acquired the occupation rights to the premises through a documented assignment from Shafii Mohamed Abdullahi; (b) the sum of Kshs. 398,708/= was paid in respect of goodwill, a deposit, and generator fees, and this was acknowledged by the 1st Respondent in its own annexure SDL-1; (c) the 1st Respondent issued an acceptance letter dated 15th May 2024, expressly accepting the transfer; and (d) the 1st Respondent thereafter demanded rent from the Appellant and levied penalties under a lease to which the Appellant had never been a party. These facts disclose, beyond question, the existence of a landlord-tenant relationship. 29.The principle that a contract, including a tenancy, may arise from conduct is well settled. In Busienei v Lizano Limited [2025] KEHC 4483 (KLR), the High Court, affirming the principle in RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co KG (UK Production) [2010] UKSC 14, held that whether there is a binding contract depends not on the subjective state of mind of the parties but on what was communicated between them by words or conduct and whether that leads objectively to the conclusion that they intended to create legal relations. Applying that test to the present facts, the 1st Respondent's acceptance of the assignment, its issuance of an acceptance letter, its demand for rent, and its acknowledgement of the predecessor's payments, all objectively evidence an intention to create and maintain a landlord-tenant relationship with the Appellant. 30.The Tribunal's reliance on the absence of a signed lease to defeat the tenancy also offends the doctrine of contra proferentem. The 1st Respondent was the party in possession of the proposed lease and capable of presenting it for execution at any time. Its failure to do so indeed, its deliberate withholding of the lease is a matter of its own making. A landlord cannot generate ambiguity through deliberate inaction and then seek to benefit from that self-created ambiguity to nullify a tenancy. Equity will not permit a party to profit from its own wrong. 31.Furthermore, the doctrine of legitimate expectation is engaged. Once the 1st Respondent accepted the transfer of the tenancy and accepted the predecessor's payments, the Appellant was entitled to expect to be recognised as a lawful tenant. To permit the 1st Respondent to resile from that position on the ground of ambiguity of its own making would be unconscionable and would amount to unjust enrichment the 1st Respondent retaining the benefit of Kshs. 398,708/= while depriving the Appellant of the corresponding benefit of possession and quiet enjoyment. 32.I find that the Tribunal erred in law in holding the tenancy to be ambiguous and unenforceable. The evidence on record, properly evaluated, discloses a valid controlled tenancy within the meaning of Cap. 301. This ground of appeal succeeds. (v) Whether the Tribunal Erred in Relation to the 1st Respondent's Self-Help Repossession 33.The Tribunal at paragraph 14 of its Ruling noted the repossession of the premises by the 1st Respondent on 11th November 2024. While the Tribunal faulted the timing and manner of the 2nd Respondent's entry, it failed to address the fundamental illegality of the initial repossession. 34.The law on self-help eviction in the context of controlled tenancies is unambiguous and long-settled. Section 7 of Cap. 301 prohibits recovery of possession of any controlled premises save pursuant to an order of the Tribunal. A landlord who repossesses premises without a Tribunal order, regardless of the reason, acts unlawfully. In Gusii Mwalimu Investment Co. Ltd & Others v Mwalimu Hotel Kisii Ltd [1996] eKLR, the Court of Appeal stated in unequivocal terms that unless the tenant consents or agrees to give up possession, the landlord must obtain an order of a competent court or statutory tribunal to obtain possession. 35.More recently, in Kamau v Mary (Civil Appeal 165 of 2023) [2025] KEHC 9497 (KLR) confirmed that the law strictly prohibits landlords from evicting tenants or interfering with their tenancy outside the framework established by Cap. 301 and other applicable legal provisions. A landlord who re-lets premises to a third party whilst purporting to have repossessed from an existing tenant, without the authority of a Tribunal order, commits an unlawful eviction regardless of the landlord's reasons or frustrations. The court held that such conduct amounts to self-help and is in direct violation of the tenant's legal rights. 36.In the present case, the 1st Respondent repossessed the premises on 11th November 2024 without notice to the Appellant, without an order of the Tribunal, and in circumstances where the Tribunal had not yet been approached. The repossession was therefore unlawful from the outset. The immediate re-letting to the 2nd Respondent on the same day compounded the illegality. A tainted act cannot be sanitised by subsequent acts. All actions that flowed from the unlawful repossession including the purported lease to the 2nd Respondent are equally tainted and incapable of conferring valid legal rights upon the 2nd Respondent vis-à-vis the Appellant's prior rights. 37.The Tribunal's failure to condemn the repossession as unlawful, and its treatment of the post-repossession state of affairs as the legal baseline for its determination, constituted a fundamental misdirection. I find that the Tribunal erred in law in this regard. This ground of appeal succeeds. (vi) Whether the Appellant is Entitled to Relief and What Remedy is Appropriate 38.Having found in favour of the Appellant on all grounds, I now consider the appropriate remedy. This requires careful consideration because, at the time of this judgment, the 2nd Respondent is in actual physical possession of the suit premises, having occupied them since at least the time of the Tribunal proceedings, pursuant to a lease executed with the 1st Respondent on 11th November 2024. The Appellant has not specifically joined the 2nd Respondent in a claim challenging his title to the lease, and the 2nd Respondent has filed no submissions before this Court. 39.The Appellant's primary prayers are: (a) a declaration that he was rightfully in possession of the suit premises and was unlawfully deprived thereof; (b) reinstatement to the suit premises; and (c) in the alternative, a refund of Kshs. 398,708/= together with compensation for financial losses. 40.As to reinstatement: while this Court has found that the Appellant was a lawful tenant who was unlawfully dispossessed, the grant of an order of reinstatement at this stage would require dislodging the 2nd Respondent from the premises. The 2nd Respondent's lease with the 1st Respondent, though tainted by the circumstances in which it was executed, has not been separately impugned or declared void in these proceedings. This Court, sitting as an appellate court from the Tribunal, is cautious about making orders that affect the 2nd Respondent's possessory rights without a full hearing on the validity of his lease. An order of reinstatement in these circumstances would risk causing an injustice to the 2nd Respondent, who, even if complicit in the landlord's conduct, has not had a full opportunity to defend his leasehold interest in proceedings specifically directed at that issue. 41.I decline, therefore, to order reinstatement at this stage. This is without prejudice to the Appellant's right to pursue any available remedy against the 1st Respondent, including a claim for wrongful eviction and damages, or to pursue appropriate proceedings challenging the 2nd Respondent's lease. 42.As to restitution: the Appellant paid the sum of Kshs. 398,708/= as the purchase consideration for the tenancy rights, comprising goodwill, a deposit, and generator fees. This sum was acknowledged by the 1st Respondent. The 1st Respondent then accepted the Appellant as tenant, took the benefit of the goodwill and deposit, and thereafter proceeded to frustrate the tenancy through deliberate inaction on the lease, denial of access, and ultimately an unlawful self-help eviction. In equity, the 1st Respondent cannot retain the benefit of Kshs. 398,708/= in these circumstances. The maxim that equity will not suffer a wrong to be without a remedy ubi jus ibi remedium applies with full force. 43.This Court is satisfied that the Appellant has established an entitlement to restitution of the sum of Kshs. 398,708/=. This sum represents consideration paid for rights that the 1st Respondent unilaterally and unlawfully extinguished. The 1st Respondent, having retained that sum while expelling the Appellant, would be unjustly enriched if not required to restore it. I accordingly order the 1st Respondent to refund the sum of Kshs. 398,708/= to the Appellant. 44.As to the Appellant's claim for compensation for financial losses (including construction costs invested in the premises): the Appellant pleaded these losses in his submissions but did not adduce evidence of the quantum of such losses before the Tribunal. The record before this Court on appeal does not contain receipts, invoices, or any particularised evidence from which a finding on quantum can be made. This Court cannot award unliquidated damages in the absence of an evidential basis. The Appellant is at liberty to pursue a separate claim for damages for wrongful eviction before the appropriate tribunal or court, at which point full evidence may be adduced. 45.On the cross-claim by the 1st Respondent for rent arrears of Kshs. 400,064/= the Tribunal dismissed this claim, correctly in my view. The arrears were calculated under a lease that was never executed by or disclosed to the Appellant. No valid demand for rent at a lawfully agreed rate was established. The 1st Respondent cannot seek rent under an undisclosed and unsigned lease while simultaneously denying the Appellant access to the premises. The dismissal of the 1st Respondent's claim for arrears is confirmed. Disposition 46.In the result, the appeal is allowed. The Ruling and Orders of the Business Premises Rent Tribunal delivered by Hon. Cyprian Mugambi on 14th March 2025 in Tribunal Case No. E1234 of 2024 are hereby set aside in their entirety save for the dismissal of the 1st Respondent's counterclaim for rent arrears, which is confirmed. 47.In substitution thereof, this Court makes the following Orders:(i)A Declaration that the Appellant, Abdikhani Abdi Diriye, was a lawful controlled tenant of Shop No. GB09 at Shujaa Mall, Nairobi, within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301), and that the 1st Respondent, Silver Dash Limited, unlawfully dispossessed him of the suit premises on 11th November 2024 by way of self-help eviction contrary to Cap. 301.(ii)The prayer for reinstatement to the suit premises is declined at this stage, without prejudice to any separate proceedings the Appellant may institute in that regard, including proceedings challenging the validity of the 2nd Respondent's lease.(iii)The 1st Respondent, Silver Dash Limited, shall REFUND to the Appellant the sum of KSHS. 398,708/= (Kenya Shillings Three Hundred and Ninety-Eight Thousand Seven Hundred and Eight Only), being the consideration paid in respect of the assignment of the tenancy rights to Shop No. GB09, within sixty (60) days of the date of this Judgment.(iv)In default of payment within sixty (60) days, the said sum shall attract interest at court rates from the date of this Judgment until payment in full.(v)The 1st Respondent's counterclaim for rent arrears of Kshs. 400,064/= is dismissed and that finding of the Tribunal is hereby confirmed.(vi)The 1st Respondent shall pay to the Appellant the costs of this appeal and the costs of the proceedings before the Tribunal.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE 2026.E.K. WABWOTOJUDGEIn the presence of:Mr. Ahmed for the AppellantMr. Nyambega for the 1st RespondentN/A for the 2nd Respondent.Court Assistants; Mary Ngoira and David Ngoosa.