https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4623

Nyaoga t/a Monte Carlo Lounge v Oriki (Environment and Land Appeal E011 of 2024) [2026] KEELC 4623 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELC 4623 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Environment and Land Appeal E011 of 2024 AA Omollo, J July 16, 2026 Between James Omariba Nyaoga t/a Monte Carlo Lounge Appellant and John Peter Nyaata Oriki Respondent (Being an Appeal from the Ruling of Hon. P. Kitur dated and delivered at Kisii on the 26th day of February 2025) Judgment 1.The Appellant was unhappy with the finding of the Vice Chair of the Business Premises Tribunal, which found him to be in arrears of rent. He therefore lodged the following grounds in his appeal:1)That the learned Vice Chair erred in law and in fact by proceeding to determine the application and issuing final orders determining /or settling the matter against the rules of natural justices2)The learned Vice Chair of the Business Premises Rent Tribunal (hereinafter referred to as “Vice Chair”) misdirected himself on several matters of law and fact. Consequently, it arrived at a decision that was not just and fair in the circumstances of the case.3)The learned Vice Chair erred in law by deviating from the practice of taking and analysing evidence in a contested matter and proceeded to make final orders on an application and therefore, arrived at a wrong decision.4)The learned vice chair erred in law and fact by allowing prayers in the application in total disregard of the response filed and therefore, failed to analyse the terms of the lease and finally arrived at a wrong decision.5)The learned Vice-Chair erred in law and in fact in dealing with superfluous issues, thus arriving at a wrong finding.6)The learned trial vice chair erred in law and in fact in not finding, in the face of overwhelming evidence, that the Respondent had not proved his claim for rent arrears.7)That the learned Vice Chair erred in law and in fact by granting orders against the appellant in favour of the respondent for payment /or clearing rent arrears of Kshs. 1,390,000/= as at 7th October 2024, in addition to any rent and incidental costs accrued to date, no later than 4th March 2025, when, in fact, the Appellant had demonstrated that the Respondent owed him more than kshs 10,000,000/= spent on renovations, an amount which ought to be deducted as rent.8)The learned Vice Chair erred in law and in fact by failing to recognise the fact that the Appellant had done substantive renovations as stipulated in the lease agreement. At the same time, the Respondent had not contributed to the renovations when costs for renovations ought to have been shared between the two.9)That the learned Vice Chair erred in law and in fact by allowing prayers made in the application when the totality of evidence required for the matter to be heard by viva voce evidence so as to enable the matter to be determined on the merits. 10) That the learned Vice Chair erred in law and in fact by proceeding to determine an application and issuing final orders determining/or settling the matter against the rules of natural justice. 2.The Appellant filed a record of appeal dated 13th May, 2025, supplementary record dated 12th September, 2025 and further supplementary record of appeal dated 27th October, 2025. All these contain the pleadings and the proceedings undertaken before the Business Premises Tribunal and forming the subject of this appeal. The case was commenced by the Respondent through a Reference under the provisions of section 12(4) of Cap 301 stating;"The complaint concerns the Landlord/Tenant has refused to pay rent and wants to sublet/sell the business premises.” 3.Contemporaneous with the Reference, the Respondent also filed a notice of motion application dated 7th October, 2024 seeking the following orders;2.That pending hearing and determination of this application, the Respondent be restrained by way of Temporary injunction from removing any items from the said business premises, subletting, selling off and/ or disposing of the business to a third party.3.That an order be issued for the Respondent to pay the outstanding/undisputed Kshs. 1,390,000/= to the Landlord within 14 days, being the rent arrears; failure to which an order be issued for the Applicant herein to levy distress on the Respondent's movable items to recover rent arrears of Kshs. 1,390,000/ =.4.That an order be issued for the Respondent to vacate and render vacant possession of the Premises for personal use and occupation.5.The Respondent to pay the costs of the application. 4.The Appellant opposed the impugned application vide his replying affidavit sworn on 5th November 2024 and supplementary affidavit sworn on 13th December 2024. He denied owing any rent arrears and deposed that clause 1.1(a)(v) of the lease agreement provided that the costs of the renovations of the impugned premises were to be shared equally between the Respondent landlord and himself. He annexed copies of receipts in his supplementary affidavit. 5.After considering the parties' pleadings and submissions, the Vice Chair, hon P. Kitur, allowed the application on 26th February, 2026. The Appellant has now challenged the said ruling on the grounds set out above. Analysis and determination:6.I have considered the facts set out in the pleadings before the BPRT, the submissions rendered in support of this appeal and am cognisant of my duty as the first appellate court. Premised on the grounds of appeal pleaded, I summarise them into two issues for determination:i.Whether or not the learned Vice-Chair erred in granting final orders in an interlocutory applicationii.Whether or not the learned vice chair erred in holding the appellant owed rent arrears. 7.In the records of the appeal file, it shows that the case before the BPRT started with a Reference and the notice of motion dated 7th October, 2024. Only prayer 2 of the motion was granted ex parte and directions issued for filing of written submissions in the presence of both counsels. 8.At the point of taking directions on hearing of the application, counsel for the Respondent challenged the validity of the filing without leave of the Court. I note from the proceedings that the Appellant’s supplementary affidavit was expunged for having been filed without leave of the Court. The leave was sought after the filing, but the request was not granted. 9.After granting the final orders in the interlocutory application, the Hon. Vice Chair stated that nothing else remained pending determination. Yet a Reference remained, which could only be marked as spent if there were no contested issues. A Reference is treated as a suit in which parties may adduce evidence and a judgment is rendered. The contested orders sought in the motion included a determination of whether the Appellant could recover renovation costs from the rent. Hence, merit in the argument that the Vice Chair erred in determining the dispute between the parties by an interlocutory application, denying the Appellant an opportunity to present evidence. 10.This brings me to the second question, namely whether the Vice Chair, BRPT, erred in finding that the application was merited and in granting all the orders. There is no dispute that the two parties executed the lease agreement dated 6th October, 2020. The lease set out the terms, inter alia, the description of the leased property, the monthly rent, the duration of the lease and the termination clause. 11.The commencement period was set at 6th February, 2021. The Respondent pleaded that the Appellant was in arrears of rent. He stated thus, “the Respondent / Tenant has continued occupying the premises of the Applicant without paying rent which has now accumulated to Kshs 1,320,000/ = that the respondent pay a monthly rent of Kshs. 70,000/= That the applicant's efforts to get the said arrears from the said respondent have been in vain.” 12.In the affidavit in support of the motion, the Respondent deposed inter alia that:3.That the said tenant pays a monthly rent of Kshs. 70,000/=4.That in the aforesaid premises the Respondent trades and operates a bar/Restaurant and accommodation.5.That in the said premises the tenant/respondent has failed, refused and/or neglected to pay the Applicant rent and has continued occupying the premises of the Applicant with rent arrears amounting to Kshs. Kshs. 1,390,000/ =. (the payment schedule was marked as JPO1-1)6.That I have reminded the tenant herein to pay the aforesaid arrears all in vain.7.That in the premises the Landlord is suffering losses and damage. 13.The Respondent annexed copies of correspondence demanding the arrears of rent and a response from the Appellant’s advocate denying he owed any arrears. According to the Appellant, clause 1.1(a)(v) of the lease provided for sharing of the cost of renovation on a 50:50 basis. The cited clause stated that;“v.The costs of repairs will be shared equally between the parties herein which costs includes but not limited to the costs of labour ,Iron sheets, bricks ,tiles and nails.” 14.The hon Vice Chair at paragraph 12 of the impugned ruling stated that the Tenant had failed to produce sufficient evidence to support the alleged agreement to offset renovation costs against the rent. He went on to hold that the Appellant was in arrears of rent because there was no proof that the renovation costs were to be offset against the rent payments due. 15.In the case of Apungu Arthur Kibira vs. Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR, the Supreme Court pronounced that in an appeal against a decision made in exercise of a discretion, the criteria for a successful appeal requires demonstration of an error of law or principle; taking account of irrelevant considerations; failing to take account of relevant considerations; or that the decision is plainly wrong. 16.Therefore, proceeding on the above principle, and on the power of the first appellate, I shall analyse the evidence presented before the BPRT to determine whether the Vice Chair exercised his discretion judiciously. A reading of clause 1.1(a)(v) of the Lease Agreement makes it clear that the renovation costs were to be shared. The agreement is silent as to when the renovations were undertaken. Secondly, the issue to be determined is the period during which the Appellant fell into the aforesaid arrears and/or the amount of rent owed in arrears. 17.The lease stated that the rents for blocks A, B, and C were Kshs 50000 while block D was Kshs 20000 to commence six (6) months of operation. The lease period was indicated as running from 6th February, 2021 to 6th February 2029. The demand letters dated 5th October, 2021 and 9th June, 2022 did not specify the amount owing with certainty, as refuted by the Appellant. 18.The learned Vice-Chair correctly restated the law on the burden of proof, which, in my view, lay on the shoulders of the Respondent. He proceeded to find that the Respondent had demonstrated a prima facie case for granting orders of temporary injunction at paragraphs 19 and 20 of the Ruling. However, the orders should have been limited to restraining the Appellant from disposing of the suit premises, pending the parties' leave to prove their case in the Reference. 19.Instead, the Tribunal Vice Chair proceeded to conclude that the Appellant was in arrears and had failed to demonstrate that renovation costs were recoverable from the rent. In my view, this conclusion could not be determined, as the Appellant had contested the claim and a reference was pending. 20.On interlocutory mandatory injunction, the Court of Appeal in the case of Locabaill International Finance Ltd. V. Agroexport [1986] 1 ALL E.R. 901, Mustil, LJ stated thus:The matter before the court is not only an application for a mandatory injunction, but is an application for a mandatory injunction which, if granted, would amount to the grant of a major part of the relief claimed in the action. Such an application should be approached with caution and the relief granted only in a clear case. 21.The learned Vice Chair did not address himself to the net effect of granting prayers 3 and 4 of the application and the pending Reference. It is on this basis that I hold that the trial magistrate did not exercise his discretion judiciously in granting final orders at an interlocutory stage. 22.Consequently, I find merit in the appeal and allow it by varying the orders issued on 26th February, 2025. The reliefs under the paragraphs i), iii)-vii) of the Ruling are set aside and/or dismissed. Specifically, the orders dismissed/set aside are;i)the tenant shall clear the arrears of Kshs 1,390,000 as at 7th October, 2024, in addition to any rent and incidental costs accrued to date, no later than 4th March, 2025.ii)In default, the landlord is at liberty to proceed and distress for the rent without any further reference to this Tribunal.iii)The tenant shall additionally hand over vacant possession of the premises to the Landlord on or before 31st March, 2025, failure to which the Landlord shall be at liberty to break with the assistance of OCS Mosocho Police Station or any other police station close by. 23.The order of injunction granted is upheld and to remain in force pending determination of the Reference. The file is referred back to the BPRT for hearing before another officer of that Tribunal other than hon Vice Chair P. Kitur. 24.The Appellant is awarded the costs of this appeal. DATED, SIGNED AND DELIVERED AT KISII THIS 16TH DAY OF JULY, 2026.A. OMOLLOJUDGE