Muraga v Karanja (Environment and Land Appeal E086 of 2025) [2026] KEELC 3960 (KLR) (25 June 2026) (Judgment)

Muraga v Karanja (Environment and Land Appeal E086 of 2025) [2026] KEELC 3960 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELC 3960 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E086 of 2025 JG Kemei, J June 25, 2026 Between Gerald Kagira Muraga Appellant and Alice Wanjiku Karanja Respondent Judgment 1.This appeal arises from the decision of the Business Premises Rent Tribunal (hereinafter referred to as the Tribunal) delivered by the Honourable Mike Makori on 13/06/2024. 2.To contextualise the appeal, the litigation history before the Tribunal will suffice. The Appellant instituted proceedings before the Tribunal by a Reference dated 7/8/2023 under Section 12(4) of the Landlord and Tenants (Shop, Hotel and Catering Establishments) Act Cap.301. The Reference is attributed to mismanagement of the stall and improper use of the premises. Alongside the Reference, the Appellant filed an application dated 7/8/2023 seeking a raft of orders as follows;a.A mandatory injunction against the 1st Respondent compelling her to vacate Stall No. B-2 pending the hearing and determination of the application.b.A mandatory injunction do issue against the 1st Respondent compelling her to vacate Stall No. B-2 pending the hearing and determination of this Suit.c.Costs of the application. 3.On 5/9/2023, the Tribunal granted prayer b) pending an inter partes hearing. When the application came up for hearing on 18/9/2024, the Tribunal noted that, despite service having been effected, the Respondent had not filed any response. The Tribunal then allowed the application and marked the file as closed. The orders were extracted on 27/9/2023. On 5/10/2023, pursuant to the Appellant’s application dated 29/9/2023, the Tribunal directed the OCS Kamukunji Police Station to ensure compliance with its orders. The orders issued on 5/10/2023 were extracted on 17/10/2023. 4.Upon the execution of the said orders, the Respondent entered appearance on 13/12/2023 and filed an application dated 19/12/2023. The Respondent sought orders expunging the proceedings and the orders issued by the Tribunal, and damages for loss incurred as a result of the seizure and removal of goods from the said premises. The Respondent contended that there was no tenancy relationship between the Applicant therein and herself, so as to warrant the Tribunal’s invocation of jurisdiction to issue the impugned orders. She averred that she was never served with the application, hence her non-appearance. She asserted that there is no complaint or cause of action from the Landlord to warrant her eviction. 5.In response to the Respondent’s application, the Appellant filed a Replying Affidavit dated 26/2/2024 and a Preliminary Objection dated 16/2/2024. In his Affidavit, the Appellant averred that, in fact, no tenancy relationship exists between him and the Respondent. He stated that the Respondent’s application offends Sections 2 and 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Cap. 301. He asserted that the Tribunal lacks jurisdiction to grant the orders sought by the Respondent. The Preliminary Objection raised similar grounds in opposition to the application. 6.Upon hearing the application and the preliminary objection thereto, the Tribunal, in its Ruling delivered on 2/7/2024, vacated and set aside its orders of 27/9/2023 and 17/10/2023. The Appellant was ordered to return all goods of trade, stock, and records of stock, and to reinstate the Respondent to her premises to the same state as before execution. The Appellant was further ordered to compensate the Respondent for damages and loss incurred as a result of the seizure and removal of her goods from the subject premises. 7.The Appellant herein being dissatisfied with the said orders of the Tribunal filed this appeal by way of the Memorandum of Appeal dated 24/6/2024 on the grounds that;a.The Honourable Learned Trial Chairperson erred in Law in sitting in a matter it had no jurisdiction over.b.The Honourable Learned Trial Chairperson erred in Law in disregarding the Notice of Preliminary Objection dated 16/2/2024 invoking the issue of jurisdiction.c.The Honourable Learned Trial Chairperson erred in Fact in failing to appreciate and consider the evidence adduced that no tenancy relationship existed between parties.d.The Honourable Learned Trial Chairperson erred in Law in delivering a Ruling on a matter he had no jurisdiction over.e.The Honourable Learned Trial Chairperson erred in Law and in Fact in not considering at all the evidence before him thereby coming to the wrong conclusion. 8.For the above reasons, the Appellant prays that;a.The Appeal herein be allowed.b.The Ruling/Order allowing the Respondent's application dated 19/12/2023 be set aside and judgment be entered in favour of the Appellant.c.The costs of this Appeal be provided for.d.The Court grant such other and further Orders the Court it may deem fit. 9.The appeal was canvassed by way of written submissions. Both parties complied. The Appellant’s submissions are dated 22/11/2025, whereas the Respondent’s submissions are dated 25/11/2025. The Appellant’s submissions 10.The Appellant contests the Tribunal’s decision in overruling his preliminary objection challenging the tribunal’s jurisdiction. Relying on the decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A 696, the Appellant contends that his objection raised a pure point of law, specifically, the absence of a landlord-tenant relationship, which was expressly admitted by the Respondent in her own pleadings. He argues that this jurisdictional defect, if upheld, would dispose of the entire matter, and that the tribunal erred by proceeding to issue substantive orders (e.g., return of stock and tools) despite acknowledging or being confronted with the jurisdictional bar. 11.Citing the decision in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Maronga v Okinyi; Omete (Objector) [2024] KEBPRT 1107 (KLR) the Appellant submits that jurisdiction is foundational and that a Court or tribunal lacking it must “down its tools” and dismiss the proceedings without further orders. He maintains that the Tribunal acted ultra vires by granting relief beyond dismissal, as the Respondent’s own application negated the existence of a tenancy relationship which is a prerequisite under Cap 301. Accordingly, the Appellant prays that this appellate Court finds the tribunal lacked jurisdiction, set aside its orders, and dismiss the Respondent’s application with costs. The Respondent’s submissions 12.The Respondent identified one main issue for determination. That is, whether the Honourable Tribunal had the Jurisdiction to dismiss the Preliminary objection dated 16/2/2024 and to vacate the orders issued on 27/9/2023 and 17/10/2023 therein. The Respondent submits that the Appellant’s challenge to the Tribunal’s jurisdiction is fatally flawed, having voluntarily invoked that very jurisdiction to obtain interim orders of eviction, which were subsequently executed with resultant dispossession and loss of property valued in excess of Kshs. 4,000,000. It is contended that the Appellant cannot now be heard to argue that the Tribunal lacked jurisdiction to set aside those very orders, which were procured through concealment of material facts and misrepresentation of the relationship between the parties. Reliance is placed on the principle that jurisdiction is not a tool of convenience, and a party who has benefited from judicial process cannot opportunistically impugn that process to evade accountability. That such conduct constitutes an abuse of the Court’s process and a mockery of the foundational tenets of justice. 13.The Respondent asserts that the Tribunal acted within its statutory mandate, properly exercising the power conferred by Section 12(1)(i) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, to vary or rescind any order made under the Act. She argues that the Tribunal, in vacating the earlier orders was justified legal and necessary so as to correct an illegality. More so, since the orders were obtained through non-disclosure and in the absence of a genuine landlord-tenant relationship. The Respondent contends that the Tribunal’s jurisdiction to revisit its own orders is not ousted by the Appellant’s belated objection, and that to hold otherwise would be to sanction impunity and permit a litigant to profit from his own wrong, contrary to equitable maxims and settled jurisprudence. 14.On the question of costs, the Respondent submits that costs should follow the event in accordance with Section 27 of the Civil Procedure Act. She argues that the Appellant, having failed in his challenge and having engaged in conduct that undermines the integrity of judicial proceedings, should bear the costs of the appeal. The Respondent prays that the appeal be dismissed in its entirety, as the Tribunal’s ruling was well-founded in law and fact, and was a just exercise of its powers to correct an illegality. It is further submitted that the Appellant, having come to Court with unclean hands, is undeserving of any equitable relief, and the only appropriate outcome is to uphold the Tribunal’s decision and affirm that Courts are sanctuaries of justice, not instruments for calculated injustice. Analysis and Determination 15.I have considered the gist of the appeal as well as the rival submissions thereon. The following issues fall for determination are;a.Whether the Tribunal had jurisdiction to hear and determine this matter.b.Which orders should the Court issue?Whether the Tribunal had jurisdiction to hear and determine this matter. 16.It is trite law that jurisdiction is everything, and without it, the Court cannot take one more step in the case. In the celebrated case of Owners of Motor Vessel ‘Lillian S’ –vs- Caltex Oil (Kenya) Limited (1989) eKLR, the Court held that:“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…” 17.Similarly, the Supreme Court in the case of Samuel Kamau Macharia & Another –vs- Kenya Commercial Bank Limited & 2 Others [2012] eKLR pronounced itself thus:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation….” 18.A Court derives its jurisdiction from the Constitution, legislation, or both. The jurisdiction of this Court is derived from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act.The jurisdiction of the ELC Court is set out in Section 13 of the ELC Act as follows:1.The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.2.In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—a.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;b.relating to compulsory acquisition of land;c.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.any other dispute relating to the environment and land 19.The Jurisdiction of the Business Premises Rent Tribunal [BPRT] is outlined in Section 12 of the Landlord and Tenants Act as follows:“A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power—a.to determine whether or not any tenancy is a controlled tenancy;b.to determine or vary the rent to be payable in respect of any controlled tenancy, having regard to all the circumstances thereof;c.to apportion the payment of rent payable under a controlled tenancy among tenants sharing the occupation of the premises comprised in the controlled tenancy;d.where the rent chargeable in respect of any controlled tenancy includes a payment by way of service charge, to fix the amount of such service charge;e.to make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy;f.for the purpose of enabling additional buildings to be erected, to make orders permitting landlords to excise vacant land out of premises of which, but for the provisions of this Act, the landlord could have recovered possession;g.where the landlord fails to carry out any repairs for which he is liable—i.to have the required repairs carried out at the cost of the landlord and, if the landlord fails to pay the cost of such repairs, to recover the cost thereof by requiring the tenant to pay rent to the Tribunal for such period s may be required to defray the cost of such repairs, and so that the receipt of the Tribunal shall be a good discharge for any rent so paid;ii.to authorize the tenant to carry out the required repairs, and to deduct the cost of such repairs from the rent payable to the landlord;h.to permit the levy of distress for rent;i.to vary or rescind any order made by the Tribunal under the provisions of this Act;j.to administer oaths and order discovery and production of documents in like manner as in civil proceedings before the High Court, to require any landlord or tenant to disclose any information or evidence which the Tribunal considers relevant regarding rents and terms or conditions of tenancies, and to issue summons for the attendance of witnesses to give evidence or produce documents, or both, before the Tribunal;k.to award costs in respect of references made to it, which costs may be exemplary costs where the Tribunal is satisfied that a reference to it is frivolous or vexatious;l.to award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the tenant with the landlord’s consent;m.to require a tenant or landlord to attend before the Tribunal at a time and place specified by it, and if such tenant or landlord fails to attend, the Tribunal may investigate or determine the matter before it in the absence of such tenant or landlord;n.to enter and inspect premises comprised in a controlled tenancy in respect of which a reference has been made to the Tribunal.” 20.Section 2 of the Landlord and Tenants Act defines a controlled tenancy as follows:a tenancy of a shop, hotel or catering establishment—a.which has not been reduced into writing; orb.which has been reduced into writing and which—i.is for a period not exceeding five years; orii.contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; oriii.relates to premises of a class specified under subsection (2) of this section. 21.It is evident that there is no tenancy relationship between the parties. The record shows that both parties confirm there is no tenancy relationship, hence the Tribunal is bereft of jurisdiction. In its impugned Ruling, the Tribunal noted at Paragraph 12 that there was indeed no tenancy relationship between the parties. On that basis, the Tribunal set aside the orders issued on 27/9/2023. 22.It cannot be gainsaid that jurisdiction is the bedrock of judicial authority. Without jurisdiction, a Court is bereft of the power to make any enforceable orders, and any orders issued are a nullity. This principle was aptly articulated by the Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 Others [2022] KECA 15 (KLR), where it stated:“ 38.A decision made by a Court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.” 23.It therefore follows that the orders issued on 27/9/2023 are null and void. They are hereby set aside. Further, the pending proceedings before the Tribunal are hereby marked closed for want of jurisdiction. 24.Having set aside the said orders, the question is whether this Court has the authority to invoke its inherent jurisdiction to administer justice. 25.The doctrine of inherent jurisdiction is a fundamental principle of judicial authority, enabling Courts to act where necessary to ensure justice is served, as enshrined in Section 3A of the Civil Procedure Act, which provides that:“Nothing in this Act shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” 26.Sections 1A and 1B of the Civil Procedure Act affirm the need for expeditious dispensation of justice as follows:“1A (1)- The overriding objective of this Act and the rules made hereunder is to facilitatethe just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. 2.The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).SUBPARA 1B (1)-For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims-SUBPARA a.the just determination of the proceedings;SUBPARA b.the efficient disposal of the business of the Court;SUBPARA c.the efficient use of the available judicial and administrative resources;SUBPARA d.the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; …” 27.This is a clear case of abuse of the Court process. After obtaining orders and executing them, the Appellant then turns around and faults the Tribunal for issuing the orders as it did. The Court will not fold its hands and allow an injustice to be perpetrated. Although I have set aside the Tribunal's orders, the Court will exercise its inherent power to administer justice and restore order. 28.Accordingly, this appeal will be determined in the following terms;a.The Orders issued on 27/9/2023 and 17/10/2023 by the Tribunal and all consequential orders are null and void. They are hereby vacated and/or set aside.b.The pending proceedings before the Tribunal are hereby marked as closed for want of jurisdiction.c.The Appellant is ordered to return all the goods of trade, stock, record of stocks and all other goods and properties contained in Stall No. B-2 in Kiria-ini Building in Kamukunji and to reinstate the rental unit to the same status it was before the execution carried out pursuant to Orders issued on 27/9/2023 and 17/10/2023.d.The Appellant is ordered to compensate the Respondent for the damages and loss incurred as a result of the seizure and removal of goods from the rented premises, being Stall No. B-2 subject to assessment by a registered valuer within 30 days from the date of this judgment to be appointed jointly by the parties in default by the Chairman of Institute of Surveys of Kenya [valuation chapter] [ISK] whose decision will be final.e.The OCS Kamukunji Police Station to ensure compliance with the orders of this Honourable Court.f.The Appellant shall bear the costs of both the Appeal and at the Tribunal. 29.It is so ordered DELIVERED, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the Presence of:Ms Nanjala for the AppellantMs. Kabinu for the RespondentCA – Ms Kendi