https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3971

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISII** **ELC LA E001 OF 2026** # JOSEPH OMWENA # T/A LEGEND EXEC. SERVICES – KISII ……….…….….APPELLANT **VERSUS** **FRED NYASAKA ]** **DUKE MAYAKA NYASAKA ]** ## JULIUS NYASAKA ] **ALICE NYASAKA ]** *(Sued as intended administrators of* *the Estate of Robinson Nyasaka* ……………………… **RESPONDENTS** **JUDGMENT** 1. The appellant lodged the appeal raising eight (8) grounds challenging the decision of the Business Premises Tribunal delivered on 18th December 2025 by hon Gad Chemoiya. The grounds stated thus: 1. **Error in law in allowing distress while a review Application was pending** 1.1 *The Learned Tribunal erred in law and principle by allowing the Respondents’ application dated 6th October 2025 for leave to levy distress despite the existence of a pending review application dated 19th September 2025 challenging the very ruling sought to be enforced.* *1.2 The Tribunal failed to appreciate that execution or enforcement cannot issue from a decision that is under active review before the same Tribunal, as doing so renders the review illusory, nugatory, and procedurally unjust.* 1.3 *The Tribunal disregarded settled jurisprudence that status quo must be preserved pending determination of a review, thereby violating the principles of fair hearing, procedural propriety, and judicial consistency.* 2. **Misapprehension of Section 12(4) of Cap 301** 2.1 *The Tribunal misdirected itself on the scope and effect of Section 12(4) of the Landlord and Tenant Act, which expressly empowers the Tribunal to review, vary, or set aside its own orders.* *2.2 Having properly invoked its review jurisdiction earlier. the Tribunal acted inconsistently and unreasonably by simultaneously permitting enforcement measures whose legality was still under judicial interrogation.* *2.3 The Tribunal thereby defeated the statutory purpose of review proceedings and undermined its own supervisory jurisdiction.* 3. **Error in law in sanctioning distress on disputed and unascertained rent arrears** 3.1 *The Learned Tribunal erred in law by sanctioning distress for rent in the absence of a clear, final, and verified determination of rent arrears.* *3.2 The Tribunal failed to appreciate that the alleged arrears were:* * *Actively disputed by the Appellant;* * *Subject to reconciliation and evidentiary proof;* * *Central to the pending review and reference proceedings.* *3.3 The Tribunal ignored its statutory duty under Section 12(1)(h) of Cap 301 to first investigate, assess, and conclusively determine the rent payable before permitting the draconian remedy of distress.* 4**. Failure to Consider the Appellant’s Evidence of Payment and Rent Reconciliation** 4.1 *The Tribunal erred by failing to properly consider and give weight to the Appellant’s uncontroverted evidence showing that:* * *Rent payments were made to both the deceased landlord and the Respondents;* * *A sun of Kshs.184,000/= was the only reconciled balance, which had already been settled in good faith.* *4.2 The Tribunal’s conditional order merely “factoring in” Kshs.184,000/= without conclusively determining rent liability amounted to an abdication of judicial duty and introduced uncertainty and arbitrariness into the process.* 5. **Erred in ignoring the effect of Landlord’s interference with quiet possession** 5.1 *The Tribunal failed to consider and properly apply the settled principle that a landlord who interferes with a tenant’s possession cannot lawfully demand rent for that period.* *5.2 The Tribunal ignored evidence that:* * *The premises had been rendered non-operational since November 2024;* * *Utilities had been disconnected;* * *The Appellant’s business operations were forcibly disrupted;* * *Interim preservation orders had earlier acknowledged the hostile environment.* *5.3 The Tribunal therefore erred in equity and law by allowing rent -based enforcement without addressing landlord-induced frustration of the tenancy.* **6. Improper Suspension of the Tenant’s Reference** *6.1 The Tribunal erred in law by ordering that the Tenant’s Reference dated 1st December 2024 be held in abeyance, effectively punishing the Tenant for exercising a statutory right.* *6.2 The Tribunal failed to appreciate that a reference under Cap 301 is the primary dispute resolution mechanism, and cannot lawfully be subordinated to enforcement proceedings whose legality is contested.* *6.3 The suspension order amounted to a denial of access to justice, contrary to Article 48 of the Constitution.* **7. Failure to apply equitable principles and article 159 of the Constitution** *7.1 The Tribunal failed to apply the principles of equity, proportionality, and substantive justice, contrary to Article 159(2)(d) of the Constitution.* *7.2 The Tribunal allowed a harsh, irreversible remedy (distress and auction) in circumstances where:* * *The dispute was still alive;* * *Review proceedings were pending;* * *The subject matter required preservation.* *7.3 The Tribunal failed to balance the competing interests of the parties, thereby occasioning grave prejudice and irreparable harm to the Appellant.* **8. Decision against the weight of evidence and applicable Law** *8.1 The entire ruling is against the weight of evidence, applicable statutory provisions, and binding judicial precedent.* *8.2 The Tribunal misapprehended the facts, misapplied the law, and arrived at a decision that is manifestly unjust, unreasonable, and untenable.* 1. Directions were agreed that the appeal be prosecuted by way of written submissions. Vide submissions dated 10th March, 2026, the appellant, Joseph Omwena trading as Legend Executive Services–Kisii, challenges the ruling of the Business Premises Rent Tribunal delivered on 18 December 2025 in BPRT Case No. E076 of 2024. He contends that the Tribunal erred by dismissing his application for review, allowing the respondents to levy distress for rent, and suspending his reference pending payment of rent. 2. The appellant argues that once a reference is filed under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, the Tribunal is required to preserve the tenancy relationship and determine the dispute before permitting enforcement measures such as distress for rent. He submits that the Tribunal misapplied its powers under Section 12 of the Act by allowing distress without first resolving the tenancy dispute or verifying the alleged rent arrears. 3. The appellant further maintains that the rent claimed by the respondents was disputed and had not been properly reconciled. He states that he had already paid substantial amounts of rent, including rent for January, February, and March 2026, and that the only contested period related to the time when the premises were allegedly rendered unusable due to the respondents’ interference. Relying on the doctrine of quiet enjoyment, he argues that a landlord cannot demand rent for periods during which a tenant is deprived of beneficial use of the premises. 4. He also faults the Tribunal for failing to adequately consider evidence of payments amounting to Kshs. 184,000 and for merely directing that the payments be factored into the account without determining the actual arrears. According to the appellant, the Tribunal ignored evidence that the premises had become non-operational, utilities had been disconnected, and business operations disrupted by the respondents. 5. Finally, the appellant contends that the order holding his reference in abeyance pending payment of rent violated his constitutional rights to access to justice and a fair hearing. He submits that the decision effectively denied him the opportunity to pursue the statutory dispute-resolution process and asks the appellate court to interfere with the Tribunal’s ruling on the grounds that it was contrary to law, unsupported by the evidence, and resulted in injustice. 6. The respondents opposed the appeal, arguing that the Tribunal correctly dismissed the appellant’s application for review and properly allowed the respondents to levy distress for rent arrears. According to the respondents, the appeal raises no substantive point of law and merely seeks to challenge the Tribunal’s proper exercise of discretion. 7. The respondents submit that the appellant failed to satisfy the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules. They contend that the alleged payment of Kshs 184,000 did not constitute new and important evidence because it could have been produced during the original proceedings. They maintain that the appellant failed to demonstrate due diligence or show that the evidence was unavailable at the time the matter was being heard. Consequently, the Tribunal was correct in finding that the threshold for review had not been met. 8. On the issue of distress for rent, the respondents argue that the filing of a review application does not automatically suspend the enforcement of a lawful order. They maintain that, in the absence of a stay order, a successful party remains entitled to enforce its rights. They further contend that the Tribunal properly distinguished between its review jurisdiction and the enforceability of its decisions, noting that the law does not provide that an application for review halts execution. 9. The respondents also reject the appellant’s argument that distress could not issue before a final determination of rent arrears. They submit that distress is a lawful remedy where rent remains unpaid and that the appellant failed to provide sufficient evidence showing that the rent demanded had been settled. They rely on the principle that a tenant’s primary obligation is to pay rent as and when it falls due, notwithstanding the existence of disputes. 10. Regarding the appellant’s claim that rent should not have accrued during a period when the premises were allegedly unusable, the respondents contend that no evidence was presented to prove interference by the landlords or any circumstances capable of frustrating the tenancy. They argue that the doctrine of frustration can only be invoked in exceptional circumstances and that the appellant neither established such circumstances nor sought appropriate relief from the Tribunal. 11. Finally, the respondents submit that there is no basis for appellate interference with the Tribunal’s exercise of discretion. They argue that the Tribunal considered the relevant facts, applied the correct legal principles, and reached a fair and lawful decision. They therefore urge the court to dismiss the appeal with costs and uphold the Tribunal’s ruling of 18 December 2025. **Analysis and Determination:** 1. I have perused the record and read and considered the submissions rendered by the parties. I adopt the summary on the memo of appeal as the issues for determination. 2. The appellant avers that the Tribunal member erred in allowing the distress while a review application was pending. The Appellant does not state the date of the review application that was pending, nor does he indicate that there was an order staying the proceedings. 3. Despite the absence of stay of proceedings order, I have read the impugned ruling the subject of this appeal and note that it was in respect of two applications. The first application by the appellant dated 19th September, 2025 was seeking to review the decision of the Tribunal dated 4th September, 2025. The said application was determined together with the Respondents application which sought leave to levy distress. Thus, there was no application for review which was pending as submitted by the appellant. 4. The appellant accuses the Tribunal of misapplication of section 12(4) of the Landlord and Tenant (Shops and Catering Establishments) Act, Cap 301. The section states that, **“In addition to any other powers specifically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems fit.”** 1. The Appellant cited the case of **Re Hebtulla Properties Ltd** which held that the Tribunal must exercise its powers in a manner that protects both the landlord and the tenant. In this instance, he argues that the Tribunal failed to verify the rent arrears, allowed enforcement without resolving the dispute and suspended the tenant’s reference. 2. It is trite law that parties are bound by their pleadings. The Court of Appeal in the cases of ***Robinson Kiplagat Tuwei vs Felix Kipchoge Limo Langat ( 2020) KECA 224 (KLR),*** where it was held that a trial court should refrain from determining issues not placed before it for determination. Similarly, in the case of ***Independent Electoral and Boundaries Commission Ano. vs. Mule & 3 Others (Civil Appeal 219 of 2013) [2014] KECA 890 (KLR),*** it was held that the parties are bound by their pleadings which in turn limited the issues upon which a trial court could pronounce. 3. The appellant submits that the Tribunal failed to verify the rent arrears. I have perused the record but was unable to trace the ruling dated 4th September 2025 that was the subject of the review application. Page 133 of the record contains the **Reference dated 1st December, 2024**, which sought to stop the Respondents from interfering with the peaceful occupation of the impugned premises. 4. It is not discernible from the record which proceedings had been commenced by the Appellant for verification of the rent arrears and or taking of accounts. Hence, I find no basis for fault in the alleged exercise of discretion by the Tribunal. As already stated, the Appellant’s application for review was heard and determined, so there is no evidence to support the argument that the dispute had not been resolved by stating what was pending before the Tribunal for determination. 5. On whether distress could issue where there was a disputed rent is answered hereinabove in terms of what the pleadings before the Tribunal. Further, the Appellant affirms that he was in arrears but argues that the landlord is entitled to any rent accrued during the period the tenant was deprived of the beneficial use of the premises. 6. The burden of proof laid on the Appellant to show that there was a determination reached which found the Respondents had illegally deprived him the use of the suit premises. The appeal before me is against the decision of the Tribunal which dismissed his review application. In the review application, the appellant intended to introduce additional evidence showing payments of rent that were not captured in the decision rendered on 4th September, 2025. 7. The Tribunal considered the grounds to be met in a review application inter alia, proof that the new evidence was not within the knowledge of the applicant and second that the new evidence is buttressed by documents to substantiate it. He found that the appellant had not fulfilled the two conditions and specifically that the Appellant did not contest the rent statement annexed to the replying affidavit of the Respondent. 8. In his submissions in respect to this appeal, the appellant does state how much rent he was disputing. I have added the amounts he listed in his application for review which totals to approximately Kshs 500000 which he alleged was not credited by the Respondents. This amount, even if credited to him, still leaves a huge balance out of the sum of Kshs 1,600,000 claimed as rent arrears. 9. On the question of the legality of suspending the Appellant’s reference, the appellant submits that the same was conditional upon his paying the rent arrears. I am not persuaded that the same violated his right to a fair trial because once he fulfilled the condition, he could pursue his claim, including damages, if he proved there was interference. Secondly, the appellant was still heard on other proceedings where hw would have been granted orders had he shown merit in the applications. 10. Lastly, the question is whether the finding was against the weight of evidence. The Appellant moved the court for review orders to permit the introduction of additional evidence. He did not satisfy the Tribunal that the new and important evidence could not be traced despite diligence, nor has he submitted to this court the challenges he faced in tracing it, including M-Pesa payments from his own mobile number. 11. Further, the Tribunal held that the new evidence sought to be introduced must be substantiated by documents and in finding against the Appellant, hon Chemoiya noted that the Respondents had annexed rent statements which the Appellant did not contradict as inaccurate. He has not pointed to any inaccuracy in the rent statements that would cause this court to fault the Tribunal's finding. 12. The question of interference with his operations and pending statutory reference can be pursued before the Tribunal or any proper forum. It does not form part of the subject of this appeal. 13. The upshot of my analysis is that I find no merit in the appeal. The same is dismissed with costs to the Respondents. **Judgement signed & delivered online (CTS portal) this 25th of June, 2026** 1. **OMOLLO** **JUDGE**