https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3832

Beige Investments Ltd v Kagwi (Environment and Land Appeal E074 of 2025) [2026] KEELC 3832 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3832 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E074 of 2025 JG Kemei, J June 18, 2026 Between Beige Investments Limited Landlord and Cyrus Ngure Kagwi Tenant (Being an appeal from the Ruling of the Business Premises Rent Tribunal delivered by the Hon. P. Kitur on 14/3/2025) Judgment The background 1.This appeal arises from the Ruling of the Business Premises Rent Tribunal delivered by the Hon. P. Kitur on 14/3/2025. From the record, the parties executed a tenancy agreement dated 30/1/2017 for the premises at LR No. 3734/1201, where the Respondent carries on business. The Appellant issued a notice of termination dated 22/12/2023, stating its intention to terminate the tenancy on the ground that it intended to occupy the suit premises. In response to the notice of termination, the Respondent, by letter dated 9/1/2024, communicated his refusal to accept the termination. The Respondent contended that the tenancy had existed for over 7 years and that there were subtenants. He averred that he had made extensive developments on the premises valued at over Kshs. 10,000,000/=. Therefore, terminating the tenancy would result in significant losses for him. Subsequently, the Respondent filed a Reference before the Tribunal contesting the Notice of Termination. 2.Alongside the Reference, the Respondent filed a Notice of Motion Application dated 30/1/2024 seeking interim injunctive orders to restrain the Landlord from evicting him or otherwise interfering with his tenancy. Because the filing of the Reference was treated as a stay of the Landlord’s notice under Section 6(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap.301 Laws of Kenya, the application was compromised. 3.The Appellant filed a Replying Affidavit dated 14/2/2024 in opposition to the Reference. Subsequently, the matter proceeded to hearing. The Tribunal determined the Reference and delivered its Ruling on 14/3/2025, issuing the following orders.a.The Reference dated 11/1/2024 is allowed.b.The Notice to Terminate Tenancy dated 22/12/2023 shall be of no effect.c.The Tenant shall continue occupying the premises and shall be afforded quiet possession of the suit premises paying rent at the agreed rates.d.The Landlord is at liberty to issue any notice it deems fit.e.Each party shall bear their own costs.f.File marked as closed. 4.Aggrieved by the said Ruling, the Appellant preferred this appeal vide the Memorandum of Appeal dated 15/4/2025 on the following grounds that;a.The Honourable Member of Tribunal erred in law and in fact by applying evidence adduced during hearing of the matter to support termination of tenancy pursuant to a notice issued under Section 7 (1) (G) of Landlord and Tenant (Shops, Hotels and Catering Establishments) (herein referred as Cap. 301) as if it was evidence adduced to support Notice issued pursuant to Section 7(1) (F) and thereby arriving at an erroneous determination of the matter.b.The Honourable Member of the Tribunal erred in law and in fact by relying on the case cited by Respondent i.e. Auto Engineering Ltd -vs- M. Gonella & Company Limited (1978) eKLR which was based on possession and substantial developments on the premises as prescribed under Section 7(1) (F) of Cap. 301 to reach his decision, thus imposing a higher standard of proof not contemplated by Section 7 (1) (G) of Cap. 301.c.The Honourable Member of the Tribunal erred in law and in fact by relying on the above cited case whose ratio decidendi is on Section 7 (1) (F) of CAP 301 and thus could not be relied upon to determine a matter brought under Section 7 (1) (G) of Cap. 301.d.The Honourable Member of the Tribunal erred in law and in fact in failing to take into account while determining the matter, the evidence of the Appellant and the admission by the Respondent of the Respondent’s unilateral change of terms of the Lease and substantial breaches of the terms of the tenancy Agreement and hence did not find (as he should have) that the Tribunal could not in any way aid the Respondent; the Court being a Court of Equity.e.The Honourable Member of the Tribunal erred in law and fact in failing to strictly interpret the Landlord’s ground of Termination of Tenancy under Section 7(1) (G) of CAP 301 therefore, arriving at a wrong determination of the matter and opening a paradoxical interpretation of the law. From the finding of the Honourable Member of the Tribunal in BPRT E032 OF 2024, there might not be any distinction between Section 7(1) (F) and Section 7(1) (G) of CAP 301.f.The Honourable Member of the Tribunal erred in law and in fact by failing to take into account the documentary and oral evidence adduced before the Tribunal including the length and number of times the Landlord persistently communicated his intention to the Respondent of his desire to use the premises and went on to find that the Appellant had demonstrated “no genuine intention” to use its premises.g.By finding as he did in paragraph 6 hereinabove, the Honourable Member of the Tribunal purported to create an onerous standard of proof not required of Landlords issuing termination notices under section 7 (1) (G) of Cap 301. Such finding had no legal basis.h.The Honourable Member of the Tribunal erred in both law and fact in failing to appreciate that the Respondent had not proved its case on a balance of probabilities and further that by his conduct he was not deserving of favorable orders.i.The Honourable Member of the Tribunal erred in both law and fact by making a finding that the Appellant’s Notice was of no effect and while sitting as a Court of Justice and Equity allowed the Tenant ex post facto to continue to be in breach of terms of the tenancy Agreement at great inconvenience, loss and injustice to the Landlord/Appellant.j.The Honourable Member of the Tribunal erred in law and in fact in failing to interpret Section 7 (1) (G) as the ground upon which the Appellant sought to terminate the tenancy but instead ventured to include section 7 (1) (F) and based his findings on the requirements demonstrable under section 7(1) (f) of Cap. 301 and thereby arrived at an erroneous finding.k.The Honourable Member of the Tribunal erred in law and in fact by failing to find that the Appellant had proved all the ingredients to show that it had a genuine intention to occupy the premises for its own use.l.The Honourable Member of the Tribunal erred in law and in fact by displaying open bias against the Appellant by: -i.By rendering a Ruling permitting the tenant to continue in occupation and allowing blatant breach by the Respondent/Tenant on the Appellant/Landlord’s premises contrary to the terms of the Tenancy.ii.Allowing the Respondent/Tenant to have quiet possession even though the conduct by the Respondent/Tenant showed that he had refused to vacate the premises in bad faith.iii.Dismissing the Appellant/Landlord’s Notice to Terminate Tenancy after finding it valid.iv.Ignoring the necessity to prove by the Respondent/Tenant of alleged construction and developments at the value stated and employment of twenty-five (25) employees yet demanding proof (literally “beyond reasonable doubt”) of the Landlord’s intention to occupy its premises.v.Ignoring the Appellant’s documentary evidence, submissions and/or arguments and wholly adopting the Respondent’s submissions.vi.By the Honourable Member’s erroneous, biased ruling dated 14/3/2025 the Appellant/Landlord was unjustly, unlawfully denied his constitutional right to use and enjoyment of his property contrary to Article 40 of the Constitution of Kenya 2010. 5.The Appellant therefore prays for orders that;a.This Appeal be and is hereby allowed;b.The Honourable Member of the Tribunal’s finding be varied and be replaced with an order for the Respondent/Tenant to vacate LR 3734/1201 with immediate effect.c.The Respondent/Tenant bear the costs of the Landlord in BPRT E032 OF 2024.d.The Respondent bear the costs of this appeal. Directions on written submissions 6.The Appeal was admitted under Section 79B of the Civil Procedure Act on 25/11/2025, with the Court directing that it be argued by written submissions. Both parties were given 60 days to submit their arguments. The Appellant filed their submissions on 21/1/2026, and the Respondent on 20/1/2026. The Court has read and considered all submissions. The Appellant’s submissions 7.The Appellant identified 5 issues for determination. The first and second issues were whether the Tribunal erred in law by conflating Section 7 (1) (f) (reconstruction) with Section 7 (1) (g) (landlord’s occupation for business), thereby applying the wrong legal test, and whether the Tribunal misapplied Auto Engineering Ltd –vs- M. Gonella & Co. Ltd [1978] e KLR, a Section 7 (1) (f) authority, to a Section 7 (1) (g) dispute. These two issues were argued together. 8.The Appellant submits that the Tribunal treated a notice under Section 7(1)(f) of Cap 301 as though it were a notice under Section 7(1)(g) of the said Act, thereby leading to a wrong conclusion. The Appellant further submits that the Tribunal relied on the case of Auto Engineering Ltd –vs- M. Gonella & Co. Ltd [1978] e KLR, which concerned reconstruction requiring demolition and construction, and hence the Court demanded clear proof of plans and ability to implement. The Appellant argues that the Tribunal added words to a statute, thereby legislating from the bench. The Appellant cites the English Court of Appeal case of Cunliffe v Goodman [1950] 2 KB 237, where the Court clarified that intention is a state of mind; the Court’s task is to determine bona fides, not to demand completed acts. The Appellant also cites the House of Lords decision in Betty’s Cafes Ltd –vs- Phillips Furnishing Stores Ltd [1959] AC 20, where it was stated that the Court does not assume the role of business planner or insist on elaborate commercial documentation. 9.The third issue is whether the Tribunal erred by imposing an unlawful, elevated standard of proof and by rejecting uncontroverted evidence of intention to occupy. The Appellant submits that even if the Tribunal’s finding that the Appellant had no genuine intention is accepted, the intention was not sudden. It had issued notices for a prolonged period, intimating its intention to take over the premises. It communicated its desire to occupy, granted indulgence, and refused an extension before issuing the notice as it did. Having failed to contradict the evidence, the Tribunal substituted a sympathy-based inquiry for the statutory test. The Tribunal treated the Respondent’s commercial inconvenience as a means to defeat a statutory ground. 10.The fourth issue is whether the Tribunal failed to consider or give proper weight to the Respondent’s admitted breaches (notably unauthorized subletting) and to the equitable doctrine of clean hands. The Appellant submits that the Respondent expressly relied on sub-tenants and the disruption to subletting arrangements as the basis for continuing occupancy. It is contended that the Respondent sub-let the premises without consent; hence, he is undeserving of the Court’s protection. 11.The final issue is whether, in effect, the Tribunal’s decision unjustifiably infringed the Appellant’s proprietary rights under Article 40 of the Constitution, and whether it meets the threshold for appellate interference. It is argued that controlled tenancies do not abolish proprietary entitlements under Article 40 of the Constitution. By allowing the Respondent to continue occupying the property, the Tribunal permitted a forced tenancy to persist on terms contrary to ownership rights. The Respondent’s submissions 12.The Respondent identified 7 issues for determination. The first issue is whether the Tribunal applied the wrong legal test under Section 7(1)(g) of Cap 301. It is submitted that the Tribunal expressly addressed the standard for assessing a landlord’s intention in its decision, namely that what matters is the genuineness and demonstrability of the intention, as guided by established authorities. He cites the case of Auto Engineering Ltd –vs- M. Gonella & Co. Ltd [1978] e KLR, where the Court articulated that where termination depends on the landlord’s intention, the key inquiry is whether the intention is genuine and can be objectively demonstrated from the surrounding circumstances. He argues that the Tribunal correctly applied that case and principle to Section 7(1)(g) in determining whether the landlord genuinely intended to occupy the premises. Accordingly, the Appellant’s assertion that the Tribunal applied the wrong test is misconceived and should be rejected. 13.On the second issue, whether the Tribunal improperly relied on the Auto Engineering line of authorities, the Respondent avers that the Appellant’s argument that Auto Engineering Ltd v M Gonella (1978) is inapplicable to claims under Section 7(1)(g) is unfounded, as both legal principle and judicial precedent confirm that assessing a landlord’s intention, whether under Section 7(1)(f) or 7(1)(g), requires the same fundamental inquiry into genuineness, demonstrability, and objective ascertainability. The Tribunal and Courts have consistently applied Auto Engineering in this context, as illustrated by Hashim Omar –vs- Alliance Nominee (2020) eKLR, James Kithinji -vs- Dominic Ntongai (2020) eKLR, and Embu Gateru Housing –vs- Paramount Café (2021) eKLR. Each of these cases relied on that authority to scrutinise the landlord’s claimed intention and to reject any presumption of bona fides absent demonstrable acts and supporting documentation. This confirms that a landlord cannot rely on vague notices or self-serving assertions to justify termination of a tenancy. The Tribunal therefore cannot be faulted for adopting this standard. 14.The third issue, according to the Respondent, is whether the Tribunal failed to consider the Appellant’s evidence, including allegations of breach and subletting. The Respondent submits that the Tribunal did not disregard the Appellant’s evidence on subletting, rent-increase clauses, alleged arrears, or other breaches. On the contrary, it fully considered the record. Regarding subletting, the Tribunal found that the landlord’s 7-year acquiescence, without notice under Section 10, precluded post hoc termination. Concerning rent increases, the Tribunal noted that the Appellant never sought a formal adjustment under Section 12(1)(b), a statutory remedy, and thus could not assert prejudice. As for the alleged arrears, it is averred that the allegation was contradicted by the Appellant’s own admission that rent had been consistently paid throughout the 7-year tenancy. 15.It is contended that the tribunal correctly declined to consider new grounds for termination not raised in the original notice. Allowing a landlord to retroactively assert old breaches or to shift the basis for termination during proceedings would undermine statutory tenant protections and violate principles of procedural fairness. The Appellant’s claim that evidence was ignored is unfounded; the tribunal applied the law with integrity, evaluating the case solely on the notice served and the evidence properly before it, thereby balancing the parties’ rights and preventing circumvention of statutory safeguards. 16.According to the Respondent, the fourth issue is whether the Tribunal erred in finding that the Appellant failed to prove a genuine intention to occupy the premises. It is submitted that the central issue is whether the landlord sufficiently established a genuine intention to occupy the premises as required under Section 7(1)(g). The Tribunal rightly found the landlord’s asserted intention to be vague, unsupported, and lacking substantive proof. Notably, the landlord failed to adduce any corroborating evidence, such as a business registration or a legal entity through which the proposed occupation or development could be effected. Accordingly, mere unsubstantiated assertions cannot justify displacing a long-standing tenant who has legitimately relied upon the security of their occupancy. The Tribunal held that a landlord’s bare assertion of intention is insufficient to justify eviction under Section 7(1)(g). Genuine intention must be proven through demonstrable, objective steps, such as documented plans, budgets, approvals, and operational details, rather than mere declaratory statements. In the absence of such corroboration, the landlord’s claimed intention is deemed aspirational or opportunistic. 17.The fifth issue is whether the Tribunal was biased or applied an unfair standard of proof. The Respondent asserts that adverse judicial findings, grounded in a reasoned evaluation of the evidence, do not amount to bias, as claiming otherwise would undermine judicial independence and the fair adjudication of disputes. The Respondent emphasises that Section 12 of Cap. 301 confers broad statutory discretion upon the Tribunal, including the power to grant quiet possession, assess notices, weigh evidence, and balance equities. The Tribunal’s lawful exercise of that authority to grant quiet possession and dismiss the notice cannot be faulted. The Appellant’s argument is therefore characterised as an impermissible attack on the Tribunal’s performance of its statutory mandate, which would subvert the equitable framework established for resolving landlord-tenant disputes. 18.The sixth issue, according to the Respondent, is whether the Respondent failed to prove his case on the balance of probabilities. The Respondent argues that he satisfied his evidentiary burden by proving receipt of the termination notice, opposition to it, a long-standing tenancy, investment in the premises, and circumstances casting doubt on the landlord’s claimed intention to occupy. He submits that once these foundational facts were established, the legal burden shifted to the landlord under Section 107 of the Evidence Act to demonstrate a bona fide intention to occupy, a burden the landlord failed to discharge. He further submits that the Tribunal therefore correctly found that the landlord’s purported intention was speculative and unsupported, and that permitting eviction would contravene Sections 7(1)(g) and 12 of the governing Act, undermine public confidence in the judicial process, and violate settled principles requiring tangible evidence to substantiate claims of intention to terminate a tenancy. 19.The final issue is whether the Tribunal’s findings interfered with the Appellant’s constitutional right to property under Article 40 of the Constitution. The Respondent submits that although Article 40 of the Constitution guarantees the right to property, this right is not absolute and is subject to statutory limitations, including those under the Landlord and Tenant (Shops and Residential Premises) Act, Cap 301. He contends that the Appellant cannot invoke constitutional provisions to circumvent statutory obligations, as property rights must be exercised within a framework of accountability, fairness, and the rule of law. He argues that a landlord asserting an intention to occupy must demonstrate bona fide intent, objective evidence of tangible steps towards occupation, and strict compliance with statutory notice requirements. The Tribunal’s decision correctly balanced these interests, affirming that constitutional rights cannot be exercised in a vacuum to override tenant protections or statutory scrutiny. To permit otherwise would undermine the rule of law and sanction arbitrary eviction, which is legally and morally untenable. Analysis and Determination 20.I have considered the grounds of appeal, the record of appeal, the written submissions and the authorities cited. I find that the issues for determination are:a.Whether the Landlord’s right to property is absoluteb.Whether the Tribunal erred in applying the standard of proof of intention as set out in Auto Engineering v Gonella (1978) KLR 248, to the instant case.c.Whether the decision of the tribunal was against the weight of evidence.d.Whether the appeal has merit or not. Whether the Landlord’s right to property is absolute 21.As this is a first appeal, this Court is required to evaluate the evidence produced in the lower Court, while keeping in mind that it did not have the opportunity to see and hear witnesses. 22.The principles which guide a first Appellate Court were summarized in the case of Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123 at P.126 as follows:“… Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanor of a witness is inconsistent with the evidence in the case generally.” 23.The duty of this Court to re-analyse the case and draw its own independent conclusion as was also held in Paramount Bank Limited vs First National Bank Limited & 2 others (2023) KECA 1424 (KLR) that:“… A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. A first Appellate Court is the final Court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. While considering the scope of Section 78 of the Civil Procedure Act, a first Appellate Court can appreciate the entire evidence and come to a different conclusion…” 24.It is not in dispute that the parties herein entered into a tenancy agreement by a lease dated 30/1/2017, which has since expired. It is also not disputed that the Appellant, the Landlord, issued a notice dated 22/12/2023, seeking to terminate the tenancy on the ground that the Appellant intended to occupy the suit premises for personal use. Objecting to the notice, the Respondent communicated his refusal to vacate the premises by letter dated 9/1/2024. Subsequently, a reference was filed with the Tribunal, resulting in the Ruling of 14/3/2025, which is the subject of this appeal. 25.I have perused the said notice. It was stated that it falls under Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 Laws of Kenya (“hereinafter referred to only as “the Act”). The Act provides as follows: -“4(2) Landlord who wishes to terminate a controlled tenancy or to alter, to the detriment of the tenant any term or condition in or right or service enjoyed by the tenant under such a tenancy, shall give notice in that behalf to the tenant in the prescribed form”. 26.Section 4(4) of the said Act provides that;“No tenancy notice shall take effect until such date not being less than two months after the receipt thereof by the receiving party as shall be specified therein...” 27.Further, Section 4(5) of the Act provides: -“A tenancy notice shall not be effective for any of the purposes of this Act unless it specifies the grounds upon which the requesting party seeks the termination, alteration or reassessment concerned and requires the receiving party to notify the requesting party in writing within one month after the date of receipt of the notice whether or not he agrees to comply with the notice.” 28.Regulation 4(1) of the Landlord and Tenant (Shops forms and procedure) Regulations provides that the notice under Section 4(2) of the Act by a Landlord shall be in Form A set out in the schedule to those regulations. 29.In the case of Fredrick Mutua Mulinge t/a Kitui Uniform –vs- Kitui Teachers Housing Cooperative Society Limited [2017] KEELC 1941 (KLR) Okongó J (as he then was) cited the case of Narshidas & Company Limited -vs- Nyali Air Conditioning and Refrigeration Services Limited Civil Appeal No. 205 of 1995 where the Court stated as follows:-“The Landlord and Tenant (Shops, Hotels & Catering Establishment) Act Cap 301 Laws of Kenya lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant and the notice must also specify the grounds upon which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice...The notice to quit purportedly relied on by the Defendant in this appeal is by no means a notice which in any way complies with Form A as prescribed in the Act. Such notice can only have been given pursuant to the provisions of section 7(1)(g) of the Act. The notice to quit given or issued by the Defendant was clearly void and had no effect in law on the plaintiff’s tenancy and the plaintiff was under no duty, legal or otherwise to react to it.” 30.Having reviewed the Landlord’s notice to terminate the tenancy, I am satisfied that it complied with all the requirements of Sections 4(2), 4(4) and 4(5) of the Act, as well as regulation 4(1). I therefore find that the notice to terminate the tenancy dated 22/12/2023 was valid under the Act. I find no fault with the Tribunal’s finding on that issue. 31.The Appellant contended that its right to property under Article 40 of the Constitution was infringed by the Tribunal’s decision to allow the tenant to possess the premises. It is argued that controlled tenancies do not abolish proprietary entitlements under Article 40 of the Constitution. The Respondent, on the other hand, argues that while Article 40 of the Constitution guarantees the right to property, this right is not absolute and is subject to statutory limitations, including those under Chapter 301 Laws of Kenya. He contends that the Appellant cannot invoke constitutional provisions to circumvent statutory obligations, as property rights must be exercised within a framework of accountability, fairness, and the rule of law. 32.The right to property is provided for under Article 40 of the Constitution of Kenya. However, that right is not absolute, as it is subject to limitations. Article 40(2)(a) allows Parliament to legislate for the permissible deprivation of property, provided that such deprivation is not arbitrary, thereby limiting the absoluteness of that right. Article 24 provides for the limitation of rights under the Constitution, insofar as such limitations are reasonable and justifiable, considering factors such as the nature, importance, purpose, and extent of the right vis-à-vis the limitations, as well as prejudice to the rights and freedoms of others. The Constitution further provides in Article 24(2) that any statute limiting a right or fundamental freedom should clearly identify the right or freedom being curtailed, expressly state such intention, and specify the nature and extent of the limitation for it to be valid. 33.The Supreme Court of Kenya in the case of Kanyuira –vs- Kenya Airports Authority [2022] KESC 30 (KLR) held that;“the right to property under Article 40 is not an absolute right. In appropriate circumstances, it can be limited by the law.” 34.The Court of Appeal in the case of Lewa –vs- Mwagandi [2015] KECA 532 (KLR) held that;“Chapter 4 of the Constitution contains the Bill of Rights, which is a collection of fundamental rights and freedoms sought to be protected including the right to life (Article 26), human dignity (Article 28), freedom of movement and residence (Article 39), right to property (Article 40), fair administrative action (Article 47), access to justice (Article 48) and fair hearing (Article 50). The bill of rights is to be applied so as to develop the law where there is a gap in giving effect to a right or fundamental freedom as per Article 20 (3) (b). These rights are however not absolute, but subject to limitations in so far as such limitations are reasonable and justifiable taking into account the factors set out in Article 24 including the nature, importance, purpose and extent of the right vis a vis the limitations as well as prejudice to the rights and freedoms of others. Constitution further dictates in Article 24 (2) that any statute limiting a right or fundamental freedom should be clear about the right or freedom being curtailed and specifically express such intention as well as the nature and extent of the limitation for it to be valid. For the avoidance of doubt, the framers of the Constitution included a list of rights and freedoms which may not be limited notwithstanding any provisions of the Constitution. These absolute rights are set out in Article 25. It is instructive that the right to property is not one of them. This then leaves the protection of the right to property within the precincts of allowable limitations by the statute.” 35.The objective of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 Laws of Kenya is set out as follows:“An Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto (emphasis added).” 36.Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 defines a “controlled tenancy” to include:“…a tenancy of a shop, hotel or catering establishment which has been reduced into writing and is for a period not exceeding five years.” The suit premises were let for business purposes, and therefore fall within the category of “shops” envisaged by the Act.” 37.Section 12(4) of the Landlord’s and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301 of the Laws of Kenya provides that:“in addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the Landlord or the Tenant and may make such order thereon as it deems fit.” 38.See the case of Re Hebtulla Properties Ltd. [1979] KLR 96; [1976-80] 1 KLR 1195 in which they Learned Judges dealt in extenso with the said provision. 39.As stated in the case of Eldomart Holdings Limited –vs- Ticket Company Limited [2019] KEELC 4412 (KLR), ‘the legislature left no doubt that the Act was enacted for the purposes of protecting tenants. This Court must have the said objective in mind while interpreting the Act.’ 40.It is therefore my finding that a Landlord’s right to property is not absolute and may be limited by statute. Under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, in a controlled tenancy, the Tribunal established thereunder may investigate a complaint made to it by a Tenant and make appropriate orders as it deems fit. Therefore, where the Landlord is found to have infringed a Tenant’s rights, the Landlord’s right to property may be curtailed. Whether the Tribunal erred in applying the standard of proof of intention as set out in Auto Engineering v Gonella (1978) KLR 248, to the instant case. 41.The Appellant’s notice terminating the Respondent’s tenancies were given under Section 7(1)(g) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya (“the Act”) which allows a landlord to terminate a tenancy on the ground that:“.....on the termination of the tenancy the landlord himself intends to occupy for a period of not less than one year the premises comprised in the tenancy for the purposes, or partly for the purposes, of a business to be carried on by him therein, or as his residence.” 42.The Appellant has however accused the Tribunal of applying the standard of proof of intention under Section 7 (1) (f) of Cap. 301 which provides that;“that on the termination of the tenancy the landlord intends to demolish or reconstruct the premises comprised in the tenancy, or a substantial part thereof, or to carry out substantial work of construction on such premises or part thereof, and that he could not reasonably do so without obtaining possession of such premises; 43.Evidently, both sections address the landlord's intention. The key issue is determining the level of intent a landlord must demonstrate to terminate a controlled tenancy under section 7(1)(f) or (g) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301. This question is significant because the Act balances two key interests: safeguarding tenants against unfair eviction, rent increases, and landlord misconduct, and recognising the landlord's right to use and profit from their property. 44.The central term in both provisions is "intends." Parliament did not require the landlord to start demolition, obtain approvals, incorporate a company, secure funding, sign contracts, or obtain licences. The wording of the law emphasises intention. However, because intention is an internal mental state, it usually needs to be demonstrated by external evidence. This is where the challenge arises. 45.In the English case of Cunliffe v Goodman [1050] 1 All ER 720 as cited in Auto Engineering v Gonella (1978) KLR 248 held that;“An “intention”, to my mind, connotes a state of affairs which the party “intending” – I will call him X – does more than merely contemplate. It connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which , in point of possibility, he has a reasonable prospect of being able to bring about by his own act of volition…” 46.As noted earlier, the objective of the Act is to protect tenants under a controlled tenancy from eviction or exploitation by Landlords. 47.The primary concern is not whether the landlord has to prove intention; the more difficult question is how much evidence is required for the Tribunal or Court to consider intention sufficiently established. Essentially, the Court asks whether the law requires only proof of genuine intention or whether the landlord must also provide detailed documentation showing that they have taken substantial steps towards redevelopment or personal use. 48.In my view, the Landlord has to prove a bona fide, firm and settled intention. The law does not require proof of completed implementation. The evidence required will depend on the nature of the premises, the ground relied upon, the proposed business or redevelopment, the Landlord’s credibility and the surrounding circumstances. The Tribunal or the Court is not required to treat architectural drawings, business plans, financing documents, company registration documents or approvals as mandatory statutory requirements in every case. They are evidentiary tools, not the legal test itself. 49.I agree with the Appellant’s submission that the Court’s task is to determine a bona fide intention, not to demand completed acts. Therefore, in both Sections 7(1)(f) and (g), the burden of proof rests with the Landlord to establish a firm and settled intention. Under Section 7(1)(f), the Landlord must prove his intention by adducing documentary evidence, such as building plans, showing that he indeed intends to reconstruct the premises. Equally, under Section 7(1)(g), the Landlord must adduce evidence proving that he intends to occupy the premises for a period of at least one year and to carry on a business therefrom. How, then, does the Tribunal or the Court establish the Landlord’s honest and real intention under (g)? The intention can only be proved through documentary evidence, such as the formation of a company which the Landlord will use to run the business, bank statements as proof of the availability of funds for the intended enterprise, a loan application for funds, or any other evidence. 50.As stated in the case of Eldomart Holdings Limited –vs- Ticket Company Limited (Supra)“The burden was upon the Respondent to establish that they had an intention of occupying the suit premises for a period of not less than one year for the purposes of its own business. In the case of Auto Engineering v Gonella (1978) KLR 248, it was held that the onus is on the landlord to establish a firm and settled intention to occupy the premises held by a tenant.” 51.In Auto Engineering Ltd. v M Gonella & Co. Ltd [1978]eKLR, that was cited by both parties before the tribunal, the Court stated that:“They accordingly sought possession under section 30(1)(f). It is clear that it was against this background that the Court of Appeal went into the genuineness of the landlord’s intention to reconstruct (as Morris LJ said “Intentions can easily be asserted: their genuineness must be established”), for Denning LJ said, at pages 79, 80:The sort of case which I had in mind [ie Atkinson v Bettizon [1955] 3 All ER 340 was where a landlord wants to get possession of a shop for his own business and for that reason buys it over the tenant’s head a year or so before the lease comes to an end. He knows that he cannot oppose a new lease under section 30(1)(g) because he bought the property less than five years before the end of the tenancy. So he puts forward a case for reconstruction under section 30(1)(f), hoping to get possession on that ground. In such circumstances the Court must be careful to see that section 30(1)(f) is fully satisfied before it allows him to get possession. For this purpose the Court must be satisfied that the intention to reconstruct is genuine and not colourable: that it is a firm and settled intention, not likely to be changed: that the reconstruction is of a substantial part of the premises, indeed so substantial that it cannot be thought to be a device to get possession; that the work is so extensive that it is necessary to get possession of the holding in order to do it; and that it is intended to do the work at once and not after a time. Unless the Court were to insist strictly on these requirements, tenants might be deprived of the protection which Parliament intended them to have. It must be remembered that, if the landlord, having got possession, honestly changes his mind and does not do any work of reconstruction, the tenant has no remedy. Hence the necessity for a firm and settled intention. It must also be remembered that the Act is intended for the protection of shopkeepers, and that this protection would be nullified if a big concern could buy the property and get possession by putting in, say a new shop-front. Hence the necessity for the work being substantial.” 52.My understanding of the Court’s holding in Auto Engineering is that the Landlord bears the burden of proving intention. The Court rejected any approach that would require the Tenant to disprove the Landlord’s stated intention. It stated that the burden is on the Landlord to establish intention as a matter of fact, and that this is equally the position under the Kenyan Act. 53.The proper reading of Auto Engineering is that the Landlord must prove intention, not completed implementation. The intention must have moved beyond contemplation to decision. It must be more than a fanciful wish, phantom thought, or speculative desire, but it need not be an accomplished fact. Therefore, in both 7 (1) (f) and (g), the Landlord must prove intention. 54.Accordingly, the Appellant’s contention that the Tribunal erred in applying the standard of proof set out in Auto Engineering v Gonella (1978) KLR 248 when dealing with Section 7(1)(g) is not merited. I dare say that the decision in Auto Engineering is still good law. Whether the decision of the Tribunal was against the weight of evidence 55.Having found that the Tribunal applied the correct standard of proof, did the Appellant establish that it required the suit properties for the business it intended to carry out there? The Tribunal’s finding on this issue was negative. 56.The burden was on the Appellant to prove that it needed to occupy the suit properties for the business it intended to carry out there. The Appellant had to satisfy the tribunal that its intention to carry out business on the suit properties was genuine and that the notice to terminate was not issued for ulterior motives. After analysing the evidence adduced by the parties, the tribunal held that the notice to terminate the Respondent’s tenancy was not issued in good faith. The tribunal further held that the Appellant had failed to establish that it required the premises for its personal business. 57.From the material before the tribunal, the tribunal cannot be faulted for finding that the Appellant’s notice to terminate the Respondent’s lease lacks specificity regarding the intended use of the premises and fails to meet the threshold. The tribunal held that the Appellant had failed to attach any proof of its intended use. The tribunal further held that documents such as development plans or proof of funds would have sufficed to clearly demonstrate the intention to use the premises. Without proof of its intended use of the premises, how could the tribunal be satisfied that the Appellant intended to use the premises for its own business? 58.Regarding the issue of rent arrears, I cannot see how the tribunal can be faulted for denying it possession on that ground. The tribunal could not be expected to allow termination of tenancy on any ground other than for which the termination notice was issued by the Appellant. See the case of APA Insurance Limited -vs- Chopstick Limited & another [2022] KEELC 1391 (KLR) where Okong’o J. (as he then was) had a similar finding. 59.All is not lost to the Landlord. As noted by the Tribunal, the Appellant/Landlord is at liberty to issue a fresh notice in compliance with the law. Section 9 (3) of the Act specifically provides that;Where a Tribunal has made a determination upon a reference, no further tenancy notice shall be given in respect of the premises concerned, which is based on any of the matters affected by the determination—a.in the case of an assessment of rent, until after the expiration of two years; orb.in any other case, until after the expiration of twelve months, after the date of the determination, unless the Tribunal, at the time of the determination, specifies some shorter period. 60.Final orders for disposala.Due to the foregoing, I find no merit in the Appellant’s appeal.b.The appeal is dismissed with costs to the Respondent. 61.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered Online in the presence of:1. Ms. Bunyasi for the Applicant2. Mr. Mburu H/B for Gachie Mwanza for the Respondent3. C/A – Ms Kendi