https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2996

Gitonga v County Government of Nyeri & another (Environment and Land Petition E003 of 2025) [2026] KEELC 2996 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 2996 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Petition E003 of 2025 EK Makori, J May 13, 2026 Between James Mugo Gitonga Petitioner and County Government of Nyeri 1st Respondent Beatrice Wanjiru Muiru 2nd Respondent Ruling 1.The Petitioner filed this application under the Notice of Motion dated February 19, 2025, seeking the following orders:a.Spentb.The vacation notice referenced as CGN/KIM/LG E41 (KM6-E41), dated January 31, 2025, issued by the Respondent herein to the Plaintiff/Applicant, be lifted until the expedited hearing and determination of this suit.c.Status quo orders to be issued forthwith.d.1st and 2nd Respondents/Defendants be compelled to effect the transfer of the suit premises to the Applicant/Plaintiff forthwith.e.The 1st Respondent/Defendant be restrained from subjecting the Applicant/Plaintiff’s family to any form of harassment whatsoever until the hearing and determination of this suit.f.The Court be pleased to award any other relief as it may deem appropriate to the Applicant/Plaintiff.g.the costs of this Application be provided for. 1.The application does not have a supporting affidavit. In the application, the Applicant stated that the grounds for bringing the application are that the Respondent has issued a one-month vacation notice for the house he lives in, from 31st January 2025 to 28th February 2025, with reference to CGN/KIM/G E41(KM6-E41) dated 31st January 2025.2.The Applicant states that he has been living on the suit premises with his family members since 2013, has been in quiet possession and occupation in full knowledge of the Respondents since 2013, and has been paying rent.3.The Applicant and 2nd Respondent had entered into a rental agreement to let the suit premises, being House number (KM6-41), for a sum of Kshs.150,000/= on 2nd February 2013. He stated that he had always paid rent faithfully and never been in rent arrears.4.On January 31, 2025, the 2nd Respondent, in the company of what the Applicant terms goons, vandalized the household items belonging to the Applicant’s family at the suit property.5.He reported the matter at Nyeri Central Police Station under O.B. Number 28/31/01/2025, where it was later handled by the O.C.S., who summoned Mr. Harris Ndumia, who is in charge of the Respondents’ Housing Department. Mr. Ndumia confirmed that, provided the occupants are paying rent, any member of the public is free to occupy the County Houses at Kimathi Estate. The 1st Respondent’s replying affidavit 6.Harry Mathenge Mwangi, a Housing Officer employed by the 1st Respondent, the County Government of Nyeri, swore an affidavit in response to the instant application on November 4, 2025. 7.According to the 1st Respondent’s records, on various dates in 2006, the 1st Respondent herein was allocated a house by the then-defunct Municipality of Nyeri, thereby formalizing a legally binding landlord-tenant relationship. The relationship has been furthered and made binding by the payment of rent to the 1st Respondent, with the Applicant herein admitting that rent has always been paid through the 2nd Respondent's account. 8.On various dates in 2013, the 2nd Respondent purported to sublet the housing unit to the Applicant for Kes. 150,000/=. The 1st Respondent was made aware of these particulars in January 2025, after the two parties reported their disagreement to the Police Station following the 2nd Respondent's attempt to evict the Applicant. 9.The 1st Respondent’s view is that, by the Applicant's own admission, the Applicant desires this Honor Court to usurp the role of the landlord, the 1st Respondent herein, and rewrite the terms on Page 1 of 4 of the tenancy agreement with a strange entity, namely the Applicant, despite no contractual obligation to the Applicant. That they are not privy to the Applicant’s and 2nd Respondent’s agreement. 10.The 2nd Respondent is an employee of the 1st Respondent and is entitled to benefits arising from her employment, including allocation of scarce housing resources, subject to the condition that she will not sublet the premises. 11.Upon the 2nd Respondent's breach of the Tenancy Agreement, the 1st Respondent invoked the inherent right to evict both the Applicant and the 2nd Respondent. 12.The 1st Respondent herein has developed Estate Administration Regulations, which, under clause 4.0, exclusively reserve houses within Kimathi Estate for staff. The Applicant, therefore, invites this Honor Court to exercise the administrative duty conferred by the Constitution of Kenya, 2010, under the Fourth Schedule (Articles 185(2), 186(1), and 187(2)) by extending the orders. (A copy of the Estate Administration Regulations is annexed hereto and marked as HMM1.) 13.The 1st Respondent’s position is that the Applicant is not a staff member of the County Government of Nyeri and is not entitled to the same benefits and privileges as the 2nd Respondent, and, as such, should be evicted. 14.Further, the Applicant's continued stay poses a real danger to the collection of rent because rent is deducted from staff payslips, making it difficult for the 1st Respondent to collect rent if this Honor Court continues to issue orders regarding the stay of execution. 15.Thus, owing to the violation of the tenancy terms, the 1st Respondent’s view is that it would only be just and fair that the house be reassigned to a willing tenant bound by the terms and conditions, including but not limited to the condition that the tenant shall not sublet the house. The 2nd Respondent’s replying affidavit 16.The 2nd Respondent also filed a replying affidavit in opposition to the instant application on November 19, 2025. She deposed that she is an employee of the 1st Respondent and that sometime in 2006, she was allocated a house, KM6-E41, situated in Kimathi Estate in Nyeri County. 17.At some point in 2013, she vacated the house, and, by mutual understanding with the Applicant, he took occupancy of the house on the basis that he would pay the monthly rent due for the house in her name. She stated that she is unaware of any allegations of a written agreement among the Applicant, her husband, and herself. 18.According to the 2nd Respondent, the Applicant is seeking to mislead this Court by purporting to have entered into a written agreement, vide his exhibit marked JMG1, which is not signed by any of the parties, and by seeking this Court to enforce a void agreement. 19.She had approached the Chief Officer, Land, Housing, Physical Planning & Urbanization, to effectuate the transfer of the subject house to the Applicant, but the attempt was unsuccessful. The Applicant herein defaulted on the monthly rent payments, resulting in the deduction of Kshs. 4000 from her salary and the imposition of a penalty of Kshs. 2,500/= per month. 20.At some point in 2024, she issued a Notice to Vacate to the Applicant due to his continued failure to pay monthly rent. By the time a Notice to Vacate from the County Government of Nyeri was issued to her in January of this year, she had already informed the Applicant that he was required to vacate the house, as he had repeatedly failed to meet his obligations. 21.She highlighted that the Applicant's occupation of the subject house is based on her tenancy with the County Government of Nyeri, and that upon the issuance of the Notice to vacate to her, the same notice automatically issues to the Applicant. 22.That the continued occupation of the house by the Applicant continues to cause the 2nd Respondent financial strain, as rent continues to be deducted from her salary, despite her expressed willingness to surrender the house. The Applicant’s written submissions 23.The Applicant submitted that he acted in good faith by entering into a contract with the 2nd Respondent, based on a reasonable belief that the 2nd Respondent had authority to sublet. If there was a failure to obtain consent, that is a breach between the 1st and 2nd Respondent and should not be used to punish him, an innocent third party who has already invested in the property. 24.The Applicant faulted the 1st Respondent for failing to furnish the Court with any Tenancy Agreement and its terms with the 2nd Respondent. 25.He submits that the Tenancy terms and agreement produced by the Housing Officer, dated 2nd February, 2021, took effect while he was in occupancy, and that the claim that the houses are for staff members is misconstrued, since 90% of the residents at Kimathi Estate are not employees of the 1st Respondent, according to the Applicant. 26.His submission is that he has established a prima facie case and that, if his prayers are not granted, he will suffer irreparable injury because his school-age children will be affected. In contrast, the Respondents will suffer no prejudice. 27.The Applicant argues that, as a public entity, the 1st Respondent has a duty of administrative fairness because it was aware of his presence, and that the Respondents’ long-standing silence or acquiescence created a legitimate expectation in him as the Plaintiff. 28.Finally, the Applicant submits that occupation and possession are protected under the Land Act, given the Applicant’s possession and occupation of the suit premises. Section 54 of the Land Act examines whether the 2nd Respondent had an obligation to seek consent and failed to do so. Therefore, the law protects the Applicant, the sub-lessee, because he was unaware of the restriction. He prayed that his application be allowed. The 1st Respondent’s submission 29.Counsel for the Respondent submitted that the Application is rooted in an illegality admitted by the Applicant. The Applicant admits that, without the landlord's express consent, the tenant sublet the property to the Applicant, thereby causing prejudice to the Landlord. Given that the chalice from which the orders have been sorted is poisoned, this Court should not sanitize an illegality. 30.About the orders requested, counsel based their submission on the authority established in Kangethe & another v Access Bank (Kenya) PLC & 3 others (Civil Suit E349 of 2022) [2024] KENSC 2022 (KLR). 31.It is their submission that the Applicant has not established a prima facie case because the Estate Administration Regulations, under clause 4.0, exclusively reserve houses within the Kimathi estate for staff, and the Applicant is not employed by the 1st Respondent. 32.Regarding irreparable harm and the balance of convenience, they submit that the harm the Respondent will suffer is greater than that of the Applicant. Having established the provisions of the Estate Administration Regulations, under clause 4.0, we do submit that the Applicant and the second Respondent continue to deny the 1st Respondent's staff housing. 33.It is further submitted that courts have noted that status quo orders do not necessarily require you to examine the traditional grounds for injunctive relief outlined above. They relied on the authority of Karega & 17 others v Nthautho; Mutokaa & another (Interested Parties) (As the Legal Representatives of the Estate of Mutokaa Nthautho -Deceased) (Environment and Land Appeal 104 of 2014) [2024] KEELC 1153 (KLR) and prayed that the application be dismissed with costs. Analysis and Determination 34.The dispute arises from the Landlord-Tenant relationship between the parties, with the original Landlord of the suit premises at House number KM6-E41, Kimathi Estate. The Applicant averred in his application that he entered into an agreement with the 2nd Respondent, under which he paid rent of Ksh—150,000/= per month. The 1st Respondent, on the other hand, states that the 2nd Respondent is an employee of theirs and that she was not allowed to sublet the house, as it was only for employees, and terms it an illegality. 35.I must note that a supporting affidavit does not support the Application. Only a verifying affidavit is attached to the Plaint, verifying the averments therein. Further, the suit has been erroneously filed under Petitions in the CTS system, but it has been instituted vide a Plaint. It is a legal requirement to produce the documents relied upon by the Applicant. Order 51 rule 4 of the Civil Procedure Rules provides that:“Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.” 36.Majanja J, in the case of Jungle Energy (K) Limited v. Rwathia Distributors Limited and 2 others, 2020KEHC9379(KLR), on failure to annex a supporting affidavit, observed as follows:“Now it is mandatory that the application filed by the plaintiff be supported by an affidavit as the affidavit constitutes the evidence upon which the court acts. The affidavit in support of the application does not contain the annextures and the documents filed in support of the plaint have not been verified on oath. As the application is one that seeks a summary hearing of the claim, the documents relied upon must be annexed to the affidavit and verified as required by Rule 9 of the Oaths and Statutory Declarations Rules which provides that –“All exhibits to Affidavits shall be securely sealed thereto under the seal of the Commissioner, and shall be marked with serial letters of identification.”In light of the overriding objective, I grant the plaintiff the opportunity to rectify the error and shall give direction upon the delivery of this ruling.” 37.In the above case, the Applicant was given a chance to correct the error, whereas in other cases, the application might be struck out. However, striking out does not preclude the Applicant from resubmitting the same application in the correct format. In the case of Amondi v Airtel Networks Kenya Limited & 4 others; Central Bank of Kenya (Interested Party) (Judicial Review Application E101 of 2025) [2025] KEHC 11893 (KLR), it was held that:“This Court reiterates that the doors of justice are never closed to those who genuinely seek it. The striking out of the application dated 24th April, 2025 does not amount to a denial of justice, but rather serves as a procedural safeguard, intended to preserve the integrity of the Court’s processes. It affords the applicant an opportunity to return to the drawing board, reflect, conduct proper legal research and present an application that complies with the requirements of the law.This principle is well grounded in judicial precedent, which recognizes that striking out is not necessarily fatal to a party’s case, particularly where the defect is procedural and capable of being cured through due diligence and proper presentation. (See the principle espoused in Microsoft Corp. v Mitsumi Computer Garage Ltd [2001] 2 EA 460 and Peter Kipyegon Kirui v Agricultural Dev Co-operation & 2 Others [2007] eKLR, Christopher Michael Strong v Mwangi Mwaniki Gitonga, Eldoret HCCC No. 259 Of 2000 (unreported); And Jovenna East Africa Ltd v Sylvester Onyango & 4 Others, Milimani, HCCC No. 1086 of 2002, in which the court did allow the plaintiff to file a fresh verifying affidavit, to replace those that were defective. In other words, where an application is struck out for being incompetent, nothing prevents the applicant from filing a competent application for consideration on merit.” 38.This matter does not hinge on the infirmity or lack of the supporting affidavit. I will proceed to consider the next parameters. 39.The legal basis for Landlord-Tenant relationships is a tenancy or lease agreement. However, the only document the Applicant has produced to prove that they had a tenancy agreement is a letter dated 2nd April 2013, in which the Respondent stated that she and her husband received Kshs. 120,000/= from him, and that he was to pay a further Kshs. 30,000/= upon her vacation on the 28th of February 2013. 40.Further, the 1st Respondent, the County Government of Nyeri, stated that the Agreement was illegal because the Applicant is not an employee of the County Government of Nyeri and is therefore ineligible for scarce housing resources. The 1st Respondent’s Tenancy Terms and Agreement, annexed to their Replying affidavit under the Estate Administration Regulations, provides at Clause 10 as follows:‘Subletting is strictly not allowed. Handing over of the houses to third parties/relatives is prohibited. However, in situations where sufficient proof of the need is provided, the County Director of Housing may make considerations’ 41.The Court of Appeal in Patel v Singh (1987 KECA 21 (KLR)) expounded on the effect of an illegal contract in that case and stated as follows:“The effect of illegality upon a contract may be threefold. If at the time of making the contract there is and intent to perform it in an unlawful way, the contract, although it remains alive, is unenforceable at the suit of the party having that intent; if the intent is held in common, it is not enforceable at all. Another effect of illegality is to prevent a plaintiff from recovering under a contract if in order to prove his rights under it he has to rely upon his own illegal act; he may not do that even though he can show that at the time of making the contract he had no intent to break the law and that at the time of performance he did not know what he was illegal. The third effect of illegality is to avoid the contract ab initio and that arises if the making of the contract is expressly or impliedly prohibited by statute or is otherwise contrary to public policy.” 42.Similarly, the court in Kenya Airways Limited v Satwant Singh Flora, [2013] eKLR, found that:“Ex turpi causa non oritur action. This old and well-known legal maxim is founded in good sense, and expresses a clear and well recognized legal principle, which is not confined to indicate offences. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court not to assist him.” 43.Consequently, whatever agreement may have been made between the Applicant and the Respondent, which has not been produced, was expressly prohibited and therefore illegal and void. Thus, no action can be taken to aid the Applicant after the vacation notice. Further, there exists no valid Landlord-Tenant relationship between the Applicant and the 2nd Respondent, as the 2nd Respondent was never the legal owner of the suit premises, which belong to the 1st Respondent. 44.The instant application, dated February 19, 2025, is without merit and is hereby dismissed with costs. RULING DATED, SIGNED, AND DELIVERED AT NYERI THIS 13TH DAY OF MAY 2026.____________________________E. K. MAKORIJUDGEIn the presence of:Applicant (in person)Ms. Kimunyo for the 1st RespondentKendi: Court Assistant