https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8666

Nzaro v Kingara t/a Dancy Auctioneers & another (Civil Appeal E1327 of 2025) [2026] KEHC 8666 (KLR) (Civ) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8666 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1327 of 2025 WA Okwany, J June 18, 2026 Between Jackson Nguwa Nzaro Appellant and Daniel Gatutha Kingara t/a Dancy Auctioneers 1st Respondent Ahamed Real Estate Limited 2nd Respondent Ruling 1.This ruling is in respect to the Appellant's Notices of Motion dated 22nd December 2025 and 30th January 2026 seeking, inter alia:a.Restoration of water, electricity and other essential services to Apartment A2, Riverside Pearl Residence, Kileleshwa;b.Stay of execution of the orders issued on 9th December 2025 and all consequential orders;c.Orders restraining the Respondents from levying distress, evicting, harassing or interfering with the Appellant's quiet possession of the premises pending determination of the appeal; andd.Costs of the applications. 2.The applications are opposed by the 2nd Respondent, Ahamed Real Estate Limited. 3.The background of the case is that the Appellant and the 2nd Respondent entered into a tenancy agreement on 4th September 2023 in respect of Apartment No. A2, Riverside Pearl Residence, Riverside Grove, Nairobi, at a monthly rent of Kshs.180,000. 4.The Appellant contends that he fell into rent arrears in mid-2025 due to substantial medical expenses incurred in securing treatment for his late father in India. According to the Appellant, the landlord permitted him to remain in occupation pending stabilization of the situation and repayment of the arrears. 5.The Appellant further avers that upon returning from India he offered Kshs.600,000 towards the arrears but the Respondent declined the payment and threatened to evict him. This prompted him to seek protection before the Rent Restriction Tribunal (RRT), which allegedly issued orders restraining distress and eviction pending hearing of the dispute. 6.The Appellant contends that despite knowledge of the Tribunal proceedings, the Respondents obtained ex parte break-in orders before the Magistrates' Court without serving him, thereby causing distress and interference with his occupation. 7.The Respondent, on the other hand, maintains that the Appellant has defaulted in rent payments for over fifteen months, accumulated service charge arrears and continued to occupy the premises without meeting his contractual obligations. The Respondent asserts that the Appellant obtained stay orders from various fora while failing to honour promises to liquidate the outstanding rent. 8.The applications were canvassed by way of written submissions which I have considered. 9.Upon careful consideration of this matter, I note that the Memorandum of Appeal challenges a decision by the trial court for issuing break in orders in favour of the Respondent in sharp contradiction of the orders issued by the Rent Restriction Tribunal among other grounds of appeal. In a nutshell, the dispute herein revolves around a landlord-tenant relationship arising from leased premises. 10.Article 162(2)(b) of the Constitution mandates Parliament to establish a court with the status of the High Court to hear and determine disputes relating to the environment and the use, occupation and title to land. 11.Section 13(2) of the Environment and Land Court Act confers upon the Environment and Land Court jurisdiction over disputes relating to land, leases, tenancies, licences and other interests in land. 12.In Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR the Supreme Court emphasized that a court's jurisdiction flows from the Constitution or statute and cannot be assumed or expanded by judicial craft. 13.Having considered the nature of the appeal and the reliefs sought, I am satisfied that the dispute concerns landlord-tenant rights arising from occupation and use of land and therefore falls within the jurisdiction of the Environment and Land Court. 14.Accordingly, I find that this Court lacks jurisdiction to hear and determine the substantive appeal. 15.Flowing from the above findings, I am alive to the fact that this matter may nevertheless be transferred to the Environment and Land Court. I am guided by the recent jurisprudence recognizing the constitutional status of the High Court and courts of equal status and permitting transfer where the matter was filed in the wrong superior court. I am guided by the decision in Kaunda vs. Wambua [2025] KEELC 802 (KLR) where the Court held that the High Court and courts of equal status possess the constitutional and inherent power to transfer matters between themselves where justice demands. 16.I am persuaded that a distinction must be drawn between a matter filed in a court completely devoid of judicial authority over the subject matter and a matter filed in one superior court instead of another superior court of equal constitutional status. 17.The High Court, the Environment and Land Court and the Employment and Labour Relations Court are all superior courts established under the Constitution and exercising judicial authority under Article 159 of the Constitution. 18.Section 18 of the Civil Procedure Act empowers the High Court to transfer proceedings, while Sections 1A and 3A preserve the Court's overriding objective and inherent powers to facilitate the just, proportionate and efficient resolution of disputes. 19.The mistake herein was not filing before a tribunal or subordinate court lacking constitutional competence, but the filing of an appeal before the High Court instead of the Environment and Land Court, a court of equal status. 20.Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. 21.In the circumstances of this case, and in the interests of substantive justice, I find that the appropriate course is to transfer the appeal the court vested with the requisite jurisdiction. 22.Accordingly, I make the following orders:a.Pursuant to Section 18 of the Civil Procedure Act, Sections 1A and 3A thereof, Article 159(2)(d) of the Constitution and the inherent powers of the Court, this matter is hereby transferred to the Environment and Land Court at Nairobi for hearing and determination.b.The Deputy Registrar shall forthwith transmit this matter to the Deputy Registrar of the Environment and Land Court for hearing and determination of the application and appeal on priority basis.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026.HON. W A OKWANYJUDGEIn the presence of;Munje for ApplicantNo appearance for RespondentAbdirizak - Court Assistant