Odembo v Kache & 2 others (Environment and Land Appeal 7 of 2023) [2026] KEELC 4524 (KLR) (16 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT NAIROBI** **ELC LAND APPEAL NO. 7 OF 2023** **CELYNE ODEMBO .......................................................................................APPELLANT** **-VERSUS-** **VIVIAN KACHE .....................................................................................1ST RESPONDENT** **JIMLY PROPERTIES LIMITED ...............................................................2ND RESPONDENT** **IRENE KIRAGU T/A JANICE INVESTMENT AUCTIONEER .................3ND RESPONDENT** **JUDGEMENT** **Background of the Appeal** 1. This Appeal arises from the Order of the **Rent Restriction Tribunal** (Hon. H. K. Korir, Chairperson) made on **26th September 2023** in **Rent Restriction Tribunal Case No. E545 of 2023, Celyne Odembo v Vivian Kache, Jimly Properties Limited and Irene W. Kiragu t/a Janice Investment Auctioneers**. By the impugned Order, the Tribunal granted the Appellant **seven (7) days** within which to avail proof of payment of the outstanding rent arrears, failing which the Respondents were granted leave to levy distress for rent and obtain vacant possession of the suit premises. 2. The proceedings before the Tribunal commenced on **3rd April 2023**, when the Appellant instituted the suit together with an interlocutory application seeking, among other reliefs, orders restraining the Respondents from attaching and selling her household goods. On **6th April 2023**, the Tribunal granted interim orders directing the Appellant to liquidate the outstanding rent arrears by instalments within sixty (60) days and fixed the matter for inter partes hearing. 3. Thereafter, on **14th June 2023** and **3rd August 2023**, the Tribunal directed the parties to undertake reconciliation of accounts, ordered the Appellant to continue paying rent, and extended the interim orders pending further directions. 4. When the matter came up on **26th September 2023**, counsel for the Respondents informed the Tribunal that the Appellant had failed to cooperate in the reconciliation process and that rent arrears remained outstanding. The Tribunal consequently granted the Appellant seven (7) days within which to produce proof of payment, failing which the Respondents were authorised to levy distress for rent and obtain vacant possession. It is this Order that forms the subject of the present Appeal. **The Appeal** 1. Aggrieved by the Tribunal's Order of **26th September 2023**, the Appellant lodged a **Notice of Appeal** and thereafter filed a **Memorandum of Appeal dated 23rd October 2023** challenging the said decision. Contemporaneously, the Appellant filed an application dated **23rd October 2023** seeking stay of execution pending the hearing and determination of the Appeal. By a ruling delivered on **31st October 2024**, the Court dismissed the application, holding that the distress complained of had already been executed, thereby rendering the application moot. 2. Subsequently, pursuant to leave granted by this Court on **24th July 2025**, the Appellant filed an **Amended Memorandum of Appeal dated 9th October 2025**, which now constitutes the operative pleading before this Court. The amendment abandoned several of the original grounds and prayers, leaving six substantive grounds upon which the Appeal is premised. 3. In the Amended Memorandum of Appeal, the Appellant principally contends that the learned Chairperson erred in law and fact by issuing the impugned orders without according her a fair hearing, by directing that the Respondents obtain vacant possession without hearing the parties or receiving evidence, and by acting without jurisdiction, or in excess of jurisdiction, in granting such orders. The Appellant accordingly prays that the impugned Order be set aside and that the Appeal be allowed. **The Parties' Submissions** **The Appellant's Submissions** 1. Counsel for the Appellant submitted that the central issue in this appeal is whether the Tribunal lawfully ordered vacant possession before the dispute had been heard and determined on its merits. It was argued that although the proceedings before the Tribunal were ongoing, the suit was never heard and no evidence was tendered before the impugned order of **26th September 2023** was issued. Consequently, the Tribunal condemned the Appellant unheard, contrary to the rules of natural justice and the Constitution. 2. It was further submitted that the Tribunal violated the Appellant's constitutional right to a fair hearing guaranteed under **Article 50(1)** of the Constitution by ordering vacant possession at an interlocutory stage without affording the parties an opportunity to present their respective cases. Counsel argued that the proceedings reveal no substantive hearing preceding the impugned order and that the Tribunal was therefore required to first hear the dispute before determining the parties' rights. In support of this proposition, reliance was placed on **Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji, Civil Application No. Nai. 179 of 1998,** where the Court emphasized the centrality of the right to be heard in judicial proceedings. 3. The Appellant also relied on **Article 47** of the Constitution and **section 4 of the Fair Administrative Action Act**, submitting that the Tribunal, being a quasi-judicial body, was under a constitutional obligation to act lawfully, reasonably and in a procedurally fair manner before making a decision adversely affecting the Appellant's rights. Counsel further cited **Court of Appeal in Civil Appeal 52 of 2014 Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR** wherein the Court of Appeal underscored that Article 47 constitutionalised the right to fair administrative action and subjected administrative and quasi-judicial decisions to the principle of constitutionality. 4. On the question of jurisdiction, counsel submitted that although **section 14(1)(a) of the Rent Restriction Act** empowers the Tribunal to order recovery of possession in appropriate circumstances, such jurisdiction could only be exercised after the rent lawfully due had been established upon hearing the parties. It was contended that, since the amount of rent allegedly outstanding remained disputed and reconciliation of accounts had not been concluded, the Tribunal acted prematurely and in excess of its jurisdiction by directing vacant possession before determining the dispute on its merits. Counsel therefore urged the Court to allow the appeal with costs and set aside the impugned order. **The Respondents' Submissions** 1. The Respondents submitted that the appeal is devoid of merit and ought to be dismissed. Counsel argued that the **Amended Memorandum of Appeal dated 9th October 2025** retained only six grounds of appeal, none of which demonstrated any error on the part of the Tribunal warranting interference by this Court. It was submitted that the Tribunal properly considered both the law and the facts before issuing the impugned order. 2. Counsel further submitted that the record of proceedings demonstrates that the Appellant was accorded every opportunity to be heard throughout the proceedings before the Tribunal. Reference was made to the orders issued on **6th April 2023**, the extension of interim orders following the Appellant's application dated **8th August 2023**, and the proceedings culminating in the order of **26th September 2023**, during which the Appellant was present in court. It was therefore contended that the allegation that the Appellant was denied a hearing is unsupported by the record. 3. On jurisdiction, the Respondents argued that the Tribunal acted squarely within the powers conferred upon it by **section 5(1)(f) of the Rent Restriction Act**, which expressly empowers the Tribunal to order both the recovery of possession of premises and the recovery of rent arrears. Counsel therefore maintained that the Tribunal did not exceed its jurisdiction in granting leave to recover possession upon the Appellant's default in complying with its directions. 4. Finally, the Respondents submitted that the appeal has, in any event, been overtaken by events. Counsel pointed out that the Appellant's application dated **23rd October 2023** seeking stay of execution was dismissed by this Court in a ruling delivered on **31st October 2024**, the Court having found that the distrained goods had already been sold before the application was filed, thereby rendering the application moot. It was argued that there is nothing pending before the Tribunal and that the appeal now serves no practical purpose. The Respondents accordingly urged the Court to dismiss the appeal with costs. **Issues for Determination** 1. Having considered the Record of Appeal, the Amended Memorandum of Appeal, the rival submissions of counsel, and the applicable law, the issues that arise for determination are: 2. Whether the Rent Restriction Tribunal violated the Appellant's right to a fair hearing and due process in issuing the Order dated 26th September 2023. 3. Whether the Rent Restriction Tribunal acted within its jurisdiction in granting leave to levy distress for rent and obtain vacant possession of the suit premises. **Analysis and Determination** **Issue No. 1: Whether the Rent Restriction Tribunal violated the Appellant's right to a fair hearing and due process in issuing the Order dated 26th September 2023** 1. The gravamen of the Appellant's complaint is that the learned Chairperson issued the orders of **26th September 2023** without according her an opportunity to be heard, thereby infringing her constitutional right to a fair hearing under **Article 50(1)** of the Constitution. She further contends that the Tribunal ordered vacant possession before hearing the dispute on its merits, contrary to the rules of natural justice. 2. The right to a fair hearing is one of the cornerstones of Kenya's constitutional and legal framework. Article 50(1) of the Constitution guarantees every person the right to have any dispute capable of resolution by the application of law determined in a fair and public hearing before a court or, where appropriate, an independent and impartial tribunal. The essence of this right is that a party must be afforded a reasonable opportunity to know the case against them and to present their own case before a decision adverse to their interests is made. 3. However, the right to be heard does not imply that a party is entitled to an endless opportunity to litigate or that a court or tribunal is precluded from making appropriate orders where a party, despite being afforded adequate opportunity, fails to comply with the directions issued or neglects to prosecute their case. The inquiry for this Court, therefore, is not whether the Appellant desired a further hearing, but whether the proceedings before the Tribunal demonstrate that she was afforded a fair opportunity to participate in the process before the impugned order was made. 4. Having carefully reviewed the Record of Appeal, I am unable to agree with the Appellant that she was condemned unheard. The proceedings reveal that the matter was before the Tribunal on several occasions between **April and September 2023**. On **6th April 2023**, the Tribunal entertained the Appellant's application and granted interim relief in her favour, including directing that she liquidate the outstanding rent arrears by instalments within sixty days while preserving the status quo pending an inter partes hearing. 5. Thereafter, on **14th June 2023**, the Appellant personally appeared before the Tribunal. The proceedings show that the Respondents had by then entered appearance through counsel and informed the Tribunal that the Appellant had paid **Kshs. 40,000**, leaving a balance of **Kshs. 80,000**. Rather than determine the dispute summarily, the Tribunal, with the concurrence of both parties, directed that the parties undertake reconciliation of accounts and expressly ordered that the **status quo be maintained** pending the hearing scheduled for **3rd August 2023**. 6. When the matter next came before the Tribunal on **3rd August 2023**, the Respondents informed the Tribunal that the Appellant had failed to attend the reconciliation exercise as earlier directed and that rent arrears remained outstanding. Even then, the Tribunal did not issue adverse orders against the Appellant. Instead, by consent, it granted the parties yet another opportunity to reconcile their accounts, directed the Appellant to continue paying the current rent and extended the interim orders until **26th September 2023**. 7. The impugned proceedings of **26th September 2023** equally demonstrate that the Appellant was present before the Tribunal. Counsel for the Respondents informed the Tribunal that the Appellant had paid a total of **Kshs. 18,000**, leaving an outstanding balance of **Kshs. 76,000**, and further stated that she had not cooperated in the reconciliation process. Rather than immediately authorising execution, the Tribunal granted the Appellant a further **seven days** within which to produce proof of payment, expressly providing that only upon default would the Respondents be at liberty to levy distress and recover possession. 8. These proceedings do not portray a litigant who was denied audience by the Tribunal. On the contrary, they reveal that the Appellant actively participated in the proceedings, obtained interim relief on more than one occasion, benefited from consensual directions preserving her occupation of the premises, and was afforded repeated opportunities to reconcile accounts and regularise the outstanding rent. Indeed, even after the Respondents sought leave to levy distress, the Tribunal still afforded the Appellant an additional seven days to demonstrate compliance before any execution could issue. 9. The Appellant has also argued that the Tribunal did not record her submissions during the proceedings. While it is true that the record is concise, there is nothing before this Court to demonstrate that the Tribunal refused to hear her or prevented her from presenting her position. An appellate court cannot infer denial of a hearing merely because the proceedings are brief or because every statement made by a litigant was not recorded. The burden lay upon the Appellant to demonstrate from the record that she was denied an opportunity to be heard. That burden has not been discharged. 10. I am therefore satisfied that the complaint that the Appellant was denied a fair hearing is not borne out by the Record of Appeal. The Tribunal accorded the Appellant multiple opportunities to participate in the proceedings, to reconcile the accounts, to settle the outstanding arrears, and finally to produce proof of payment before any execution could issue. The principles of natural justice and the constitutional guarantee of a fair hearing were therefore observed. 11. Accordingly, I find that **Issue No. 1** is devoid of merit and is determined in favour of the Respondents. **Issue No. 2: Whether the Rent Restriction Tribunal acted within its jurisdiction in granting leave to levy distress for rent and obtain vacant possession** 1. The Appellant contends that the learned Chairperson acted without jurisdiction, or in excess of jurisdiction, by authorising the Respondents to obtain vacant possession before the dispute had been heard and determined on its merits. According to the Appellant, the Tribunal ought first to have determined the issue of rent arrears through a substantive hearing before issuing orders capable of culminating in her eviction. 2. The Respondents, on the other hand, maintain that the Tribunal acted squarely within the powers conferred upon it by the **Rent Restriction Act**, particularly **section 5(1)(f)**, which expressly empowers the Tribunal to order both recovery of possession of premises and recovery of rent arrears. They submit that the impugned order was made after the Appellant had repeatedly failed to comply with the Tribunal's directions relating to reconciliation of accounts and settlement of rent arrears. 3. Jurisdiction is the authority bestowed upon a court or tribunal to determine a dispute and grant the reliefs provided by law. It is trite that a court or tribunal must operate within the limits of the jurisdiction conferred by statute. As was stated by the Court of Appeal in **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1**, jurisdiction is everything, and without it a court has no power to make one more step. 4. In the present case, the jurisdiction of the Tribunal is expressly donated by the **Rent Restriction Act**. Section 5(1)(f) thereof empowers the Tribunal, subject to section 14 of the Act, to make either or both of the following orders— "(i) an order for the recovery of possession of premises whether in the occupation of a tenant or of any other person; and (ii) an order for the recovery of arrears of rent, mesne profits and service charges." 5. It follows, therefore, that the Tribunal was not acting outside its statutory mandate merely because it authorised recovery of possession. The statute expressly empowers it to grant such relief where the circumstances justify the exercise of that jurisdiction. The Appellant's argument that the Tribunal lacked jurisdiction to issue an order relating to possession is therefore not supported by the governing statute. 6. Equally, I do not agree with the Appellant's contention that the Tribunal ordered her immediate eviction without first determining the dispute. A careful reading of the impugned order demonstrates that the Tribunal first granted the Appellant **seven (7) days** within which to avail proof of payment. It was only **upon default** of that direction that the Respondents were authorised to levy distress and recover possession. The order was therefore conditional rather than self-executing. 7. The record further reveals that the impugned order did not arise in isolation. Before issuing it, the Tribunal had, over a period of nearly six months, afforded the Appellant several opportunities to regularise the tenancy. Interim orders had been granted in her favour on **6th April 2023**; the parties had been directed on **14th June 2023** to reconcile their accounts while maintaining the status quo; and on **3rd August 2023**, the Tribunal again extended the interim orders and directed the parties to undertake reconciliation. Despite these opportunities, the Respondents informed the Tribunal on **26th September 2023** that reconciliation had not been undertaken and that rent arrears remained outstanding. 8. An appellate court will not lightly interfere with the exercise of a discretionary power by a subordinate court or tribunal unless it is shown that the decision was based on a misdirection, that irrelevant considerations were taken into account, relevant considerations ignored, or that the decision is plainly wrong. Having examined the proceedings leading to the impugned order, I find no such error. The Tribunal progressively managed the dispute, issued interim protective orders, encouraged reconciliation, granted extensions of time, and only resorted to the impugned conditional order after repeated non-compliance with its earlier directions. 9. The Appellant has therefore failed to demonstrate that the Tribunal either acted without jurisdiction or exceeded the jurisdiction conferred upon it by the **Rent Restriction Act**. At best, her grievance relates to the manner in which the Tribunal exercised its statutory discretion. However, the record does not disclose any misdirection in the exercise of that discretion that would warrant interference by this Court. 10. Consequently, I find that **Issue No. 2** is equally without merit. The Tribunal acted within the jurisdiction conferred upon it by the **Rent Restriction Act**, and the Appellant has not established any basis upon which this Court may interfere with the impugned order. **Disposition** In the result, having carefully reconsidered the Record of Appeal, the applicable law, and the rival submissions of the parties, I find that: * 1. TheAppeal is devoid of merit and is hereby dismissed. Consequently, the Order of the Rent Restriction Tribunal made on **26th September 2023** in **Rent Restriction Tribunal Case No. E545 of 2023** is hereby upheld. 2. The Appellant shall bear the costs of this Appeal. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** via e-mail at **NAIROBI** on this **16th** day of **July, 2026.** **MOHAMMED N. KULLOW** **JUDGE**