https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4556

Alaska Village Ltd v Gitonga & another (Sued as the Administrators of the Estate of Dorcas Nyawira Gitonga) (Environment and Land Appeal E058 of 2026) [2026] KEELC 4556 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEELC 4556 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E058 of 2026 MN Kullow, J July 14, 2026 Between Alaska Village Limited Appellant and Peninah Waithera Gitonga 1st Respondent Lucy Wanjira Gitonga 2nd Respondent Sued as the Administrators of the Estate of Dorcas Nyawira Gitonga Ruling 1.The application before this court is the notice of motion application dated 1st April 2026 filed by the Appellant seeking for the following orders:1.Spent.2.That pending hearing and determination of this application inter parties this honourable court be pleased to issue a temporary injunction restraining the Respondents whether by themselves, their agents, servants, or otherwise howsoever from evicting the Appellant, locking, sealing, barricading, interfering with or in any manner whatsoever disrupting the Appellant’s quiet possession, use and occupation of the premises known as LR N0 209/37/366/7.3.That pending hearing and determination of this appeal this honourable court be pleased to issue a temporary injunction restraining the Respondents whether by themselves, their agents, servants, or otherwise howsoever from evicting the Appellant, locking, sealing, barricading, interfering with or in any manner whatsoever disrupting the Appellant’s quiet possession, use and occupation of the premises known as LR N0 209/37/366/7.4.That pending hearing and determination of this application inter partes an order be issued maintaining status quo obtaining on the suit premises.5.That pending hearing and determination of this Appeal, there be a stay of proceedings in Milimani CMELC No E1156 of 2025.6.That this honourable court be pleased to grant such further or other orders as it may deem fit and just in the circumstances.7.Costs of the Application. 2.The application was premised on grounds as in the supporting affidavit sworn by Anita Moraa Ratemo.She deponed that the Appellants were tenants of the Respondents having entered into a lease agreement for a period of 5 years 3 months which lease expired on the 1st December 2025.She further deponed that at the expiry of the lease, they continued staying in the suit premises without an extension of lease and continued paying rents to the Respondents thereby making the tenancy a controlled one. 3.She further deponed that despite there being a controlled tenancy, the Respondents obtained eviction orders from the Chief Magistrate’s Court, a court that did not have jurisdiction to entertain the proceedings in Milimani CMELC No E1156 of 2025 since the tenancy was a controlled one and therefore, they bare at the risk of eviction if the court does not grant the injunctive orders sought and furthermore there is an arguable appeal that will be rendered nugatory should eviction occur 4.The Respondent in response filed grounds of opposition and a replying affidavit sworn by Peninah Waithera Gitonga dated the 20th April 2026 and 24th April 2026 respectively. 5.The deponent deponed that there existed no tenancy relationship as between the Appellants and the Respondent, the lease having expired on the 1st of December 2025. She deponed that the Respondents had communicated to the Applicants via a letter dated 7th October 2025 indicating they will not be renewing the lease and further follow up letters dated 4th December and 15th December 2025 asking the Appellants to vacate the suit premises and not remit any rents in respect of the suit properties failure to which the Respondents will institute legal proceedings .That in blatant disregard to the instructions not to pay rents, the Appellants deposited rents in an account not accessible to the Respondents due to ongoing succession proceedings but disclosed the same rents had been remitted back to the Appellants less the arrears of the months stayed in the premises after expiry of the lease. 6.She further deponed that the Appellants failed to give vacant possession and thereby sought the courts intervention in Milimani CMELC No E1156 where the court granted eviction orders and further set aside the illegally obtained orders in the Business Premises and rent tribunal in BPRT E049 of 2026 which the Appellants had obtained on misrepresentation.She deponed that there being no tenancy relationship, the Appellants were not entitled to any orders as in the application, if anything they were intermeddling with the estate of the deceased. 7.The court directed for the application be canvassed by way of written submissions with the Applicant filing submissions on the 15th June 2026. Applicant’s submissions 8.The Applicant submitted on whether there was a controlled tenancy as between the parties. It was submitted that the fact that the lases expired, and the Appellants continuing in possession, the Respondents receiving rent without protest, made the tenancy a controlled one under Section 2 of the landlord and tenant (Shops, Hotels and Catering Establishments) Act Cap 301.Counsel further submitted by dint of it being a controlled tenancy the chief magistrates court had no jurisdiction to entertain the proceeding before it and hence the orders of eviction issued are a nullity. Counsel relied on the case of Bahari (T) Company Limited Vs Alibhai Ramji Investment Limited, Leo Investment Limited t/a Mara Concord Game Lodge Vs Samson Ololmaitai & Another 9.Counsel further went to submit on whether injunctive orders should issue and on the issue of prima facie case, it was submitted having established that the orders issued by the lower court were a nullity for lack of jurisdiction, and there being a controlled tenancy, they had established a prima facie case a requirement laid down in Giella Vs Cassman Brown & Co. Ltd. [1973] EA 358. The Applicant further submitted that they had demonstrated how irreparable harm will be occasioned to them being a business that faces eminent eviction, their operations will be hindered and further loss of goodwill to the clientele which is loss that cannot be quantified with monetary means.Lastly it was submitted that the balance of convenience tilted in favour of them being tenants 10.On whether stay of proceedings in the lower court should be issued counsel indicated that having raised the issue of jurisdiction on appeal, the lower court should not be allowed to continue determining on the matter as it might lead to conflicting decisions should the appeal succeed relying in the case of Maurice Odhiambo Omware T/A Molo Garage Vs Salome Njeri & 2 Others [2025] KEELC 5542 (KLR) 11.The Respondent reiterated the contents of its replying affidavit indicating the court had no jurisdiction relying on the doctrine of exhaustion. That the Applicant was bound to the terms of the agreement Analysis and determination 12.Upon consideration of the Application, the affidavits and rival submissions, the following issues arise for determination: a. Whether after the expiry of the lease on 1st December 2025, there existed a controlled tenancy within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301. 13.Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 definesa “controlled tenancy” to include: a tenancy of a shop, hotel or catering establishmenta.which has not been reduced into writing or;b.which has been reduced into writing and which—i.is for a period not exceeding five years, or;ii.contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof, or;iii.relates to premises of a class specified under subsection (2) of this section. 14.It is not disputed that the lease agreement expired on the 1st of December 2025 on effluxion of time and that prior to the expiry, the Respondents being the landlords had by a letter dated 7th October 2025 to the Applicants, indicated they did not wish to renew the lease agreement and asked for vacant possession. It is also on record that after the expiry of the lease, the Respondents issued a letter dated 4th December 2025 to the Appellants who were still in occupation of the premises asking them to vacate the premises and not deposit any rents in respect of the suit property to the estate agent. There is a further letter attached to the pleadings of both parties dated 15th December 2025 from the Respondents asking for vacant possession before the 19th of December 2025 or else they will seek legal redress. 15.The Respondents proceeded to file pleadings in the chief magistrate’s court on the 19th December 2025 a clear indication that the Applicants had not vacated the premises and further went ahead to refund rent deposits that had been paid by the Applicants despite the letter of 4th December 2025 asking them not to pay any rents.From the above, it is clear that the Respondents had no intention of renewing the lease and communicated effectively to the Applicants who instead of vacating paid rents to ride on the fact there was a tenancy relationship under Cap 301.There being a clear indication of no intention to renew communicated severally by the Respondents, the continued occupation of the Applicants in the premises was illegal and as such cannot ride on the argument that they are controlled tenants under Cap 301 as there was no agreement at all between the parties to fall under the definition of section 2 as above. b. Whether the chief magistrates court has jurisdiction to entertain the pleadings in Milimani CMELC No E1156. 16.Having held that there was no controlled tenancy as between the parties and further, the Business Premises and Rent tribunal stripping itself of the jurisdiction to entertain the claim filed by the Applicants in BPRT E049 of 2026, then it follows that the chief magistrate’s court has the jurisdiction to entertain the proceedings before it filed by the Respondents seeking for eviction orders. The classical exposition of jurisdiction remains the words of Nyarangi JA in Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd [1989] KLR 1 where the Court of Appeal held: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means… Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 17.Moving on to the issue of whether injunctive orders should issue I am guided by the well-established principles enunciated in the locus classicus now famous precedent of Giella Vs Cassman Brown [1973] E.A. Page. 358 whose holding is as follows: - “The condition for the grant of an interlocutory injunction are now, I think well settled in East Africa.i.First, an Applicant must show a prima facie case with a probability of success.ii.Secondly an interlocutory injunction will be ne normally granted unless the Applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.iii.Thirdly, if the court is in doubt, it will decide an application on the balance of convenience the issue of prima facie case. 18.The three conditions set out in Giella (supra), need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. Having found that the Applicants have been in possession of the suit premises illegally at the detriment of the landlord the Respondents herein, it is clear that there are no rights to be protected as they are actually the ones infringing on the rights of the Respondents .There is no proof of prim facie case.Having failed to prove a prima facie case, it follows that there is no loss that will be occasioned to the Applicant that monetary damages cannot compensate , should the injunctive orders not issue. The judicial decision of “Pius Kipchirchir Kogo Vs Frank Kimeli Tenai [2018] eKLR provides an explanation for what is meant by irreparable injury and it states; “Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” The business is well capable of operating from a different location on the eviction happening. 19.Lastly the balance of convenience tilts in not granting the orders than granting as the Respondents are more likely to suffer as their proprietary rights are being infringed on and they cannot operate the premises in the manner they desire with the Applicants still in possession. I have relied on the decision of Amir Suleiman Vs Amboseli Resort Limited [2004] eKLR where the Learned Judge offered further elaboration on what is meant by “balance of convenience” and stated “The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”Bearing this in mind, I am convinced that there is a lower risk in not granting orders of temporary injunction than not granting them, pending the determination of this appeal 20.On the issue of stay of proceedings the discretion to grant the same is at the discretion of the court which discretion has to be exercised judiciously, cautiously and in the interest of justice given that expeditious disposal of disputes is a right of every party. This was indeed the holding of the Court in Kenya Wildlife Service Vs James Mutembei [2019] eKLR when it held that an order of stay is an exceptional remedy, only to be granted in exceptional circumstances, given its potential to infringe on a litigant’s fundamental right to a fair and prompt hearing. The Court was emphatic that the right of access to justice must be duly regarded and that the bar for issuing stay orders is high and requires a careful balancing of interests. The appeal is majorly based on the issue of the lower court not having jurisdiction and I have already made a determination on the same. 21.I hold the view that there are no exceptional circumstances to warrant stay of proceedings in the Chief Magistrate’s court IN CMELC E1156 of 2025. Final dispositionIn view of the foregoing, I make the following orders;a.That the Notice of Motion application dated 1st April 2026 is hereby dismissed in its entirety for lack of merit.b.The Applicants to bear the costs will be in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH DAY OF JULY 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Onimbo...........for the AppellantMr. Mola...........for the RespondentMs. Mwangi...........Court Assistant