https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4560

Kimani v Behlani & another (Land Case Appeal E178 of 2025) [2026] KEELC 4560 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELC 4560 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case Appeal E178 of 2025 MN Kullow, J July 16, 2026 Between Josephat Mwangi Kimani Appellant and Abdulaziz M Behlani 1st Respondent Sultan Jamal Osman 2nd Respondent Judgment Background of the Appeal 1.This Appeal arises from the Ruling delivered on 29th August 2025 by Hon. Gakuhi Chege (Panel Chairperson) sitting with Hon. Joyce Akinyi Osodo (Panel Member) in Nairobi BPRT Case No. E1079 of 2024, Josephat Mwangi Kimani v Abdulaziz M. Behlani & Sultan Jamal Osman. The dispute concerned a controlled tenancy in respect of Smart Butchery, Shop No. 2, Seeb Apartments, Donholm, constructed on Land Reference Numbers 82/6643, 6644 and 6645, Nairobi. The Appellant challenged a termination notice issued by the Respondents, contending that it was defective, that the 2nd Respondent lacked authority to issue it, and that the Respondents had unlawfully threatened his eviction and interfered with his quiet possession. 2.The Tribunal considered the Tenant's Reference dated 27th September 2024, the accompanying Notice of Motion, the Amended Notice of Motion dated 13th November 2024, the affidavits filed by the parties and their respective written submissions. The Tenant sought, inter alia, enlargement of time to validate the Reference, maintained that the Power of Attorney relied upon by the 2nd Respondent was forged and unregistered, and challenged the validity of the termination notice dated 16th July 2024. The Respondents, on the other hand, maintained that the 2nd Respondent acted pursuant to a duly registered Power of Attorney and that the Tenant had failed to challenge the notice within the period prescribed under Section 6(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, thereby rendering the tenancy terminated by operation of Section 10 of the Act. 3.Upon evaluating the pleadings and evidence, the Tribunal framed four issues for determination, namely, whether the Reference had been competently filed in light of Sections 6 and 10 of Cap. 301; whether the Power of Attorney validly authorized the 2nd Respondent to issue the impugned notice; whether the termination notice was valid and enforceable; and who should bear the costs of the proceedings. In addressing those issues, the Tribunal considered the provisions of Sections 4(2), 6(1), 10 and 12(4) of Cap. 301, which govern the issuance of tenancy notices, the timelines for challenging such notices, the effect of failure to lodge a reference within the prescribed period, and the Tribunal's powers to grant appropriate reliefs. 4.In determining the validity of the termination notice, the Tribunal relied on Manaver Alibhai t/a Diani Boutique -Vs- South Coast Fitness & Sports Centre Ltd [1995–1998] 2 EA 163 on compliance with statutory notices under Section 4(2) of the Act. On the effect of filing a reference outside the statutory timelines, it relied on Saheb v Hassanally (1973) EA 155 and Caledonia Supermarket Ltd -Vs- Kenya National Examinations Council [2000] eKLR, holding that the timelines prescribed under Sections 6 and 10 are mandatory and that the Tribunal lacks jurisdiction to revive a tenancy that has terminated by operation of law. 5.With respect to the challenge against the Power of Attorney, the Tribunal applied the principles in Central Bank of Kenya Ltd -Vs- Trust Bank Ltd & 4 Others [1996] eKLR, holding that allegations of fraud must be strictly proved. It further invoked Giella v Cassman Brown & Co. Ltd [1973] EA 358 in considering whether the Tenant had established a basis for injunctive relief. 6.Having considered the foregoing, the Tribunal found that the Appellant had received and responded to the termination notice but failed to lodge the Reference within the period prescribed under Section 6(1) of Cap. 301, with the result that the tenancy stood terminated by operation of Section 10 on 1st October 2024. It further found that the Power of Attorney was valid, that the termination notice was enforceable, and that there was no subsisting tenancy capable of protection by an injunction. Consequently, the Tribunal dismissed the Reference and the Amended Notice of Motion with costs, discharged the interim orders previously issued, and directed the Appellant to vacate the suit premises within thirty days, in default of which eviction would ensue. Memorandum of Appeal 7.The Appellant filed a Memorandum of Appeal dated 16th September 2025 raising nine (9) grounds of appeal, which, in the Court's view, may conveniently be condensed into the following three (3) broad issues:i.Whether the learned Tribunal erred in law and in fact in holding that the termination notice dated 16th July 2024 was valid and enforceable, and consequently dismissing the Appellant's Reference and Amended Notice of Motion.ii.Whether the learned Tribunal erred in law and in fact in finding that the 2nd Respondent had the requisite legal authority to issue the impugned termination notice by virtue of the Power of Attorney.iii.Whether the learned Tribunal properly evaluated the evidence, the parties' submissions and the applicable law before directing the Appellant to vacate the suit premises and awarding costs against him. 8.In the appeal, the Appellant prays that the Ruling delivered on 29th August 2025 in Business Premises Rent Tribunal Case No. E1079 of 2024, together with the consequential orders made thereunder, be set aside and/or vacated; that the costs of this Appeal be awarded to the Appellant; and that this Court be pleased to grant such further or other orders as it may deem fit and just in the circumstances Submissions 9.The Court’s directions were that the appeal be canvassed by way of written submissions The Appellant's Submissions 10.Learned counsel for the Appellant submitted that the Tribunal erred in law and fact in dismissing the Appellant's Reference and Amended Notice of Motion despite having previously enlarged time for filing the Reference and deemed the same as properly filed by its orders of 24th March 2025. Counsel argued that, having granted leave for the Reference to be admitted out of time, the Tribunal could not subsequently hold that it was incompetent for having been filed outside the timelines prescribed under Sections 6 and 10 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. 11.It was further submitted that the Tribunal failed to appreciate that the interim orders issued on 24th March 2025 preserved the tenancy pending the determination of the dispute. 12.Counsel further submitted that the termination notice dated 16th July 2024 was invalid for non-compliance with Section 4(2) of Cap. 301, as it failed to specify the premises to which it related. It was also contended that the 2nd Respondent lacked the requisite authority to issue the notice, the Appellant maintaining that the Power of Attorney relied upon was backdated, unregistered, doctored and therefore inadmissible in evidence. Counsel argued that the Tribunal failed to properly evaluate the evidence relating to the alleged Power of Attorney and consequently reached an erroneous conclusion as to its validity. 13.On the whole, counsel urged the Court to find that the Tribunal misapprehended both the facts and the law, failed to consider the Appellant's submissions, and improperly upheld the Respondents' actions despite the preservation orders previously issued by the Tribunal. Accordingly, the Court was urged to allow the appeal, set aside the Ruling delivered on 29th August 2025 together with the consequential orders, and award the costs of the appeal to the Appellant. The Respondents' Submissions 14.Learned counsel for the Respondents opposed the appeal and submitted that the impugned Ruling was sound both in fact and in law. Counsel argued that the termination notice dated 16th July 2024 was lawfully issued by the 2nd Respondent pursuant to a registered Power of Attorney dated 18th July 2023 and registered on 19th July 2023, thereby conferring upon him the authority to act on behalf of the 1st Respondent. 15.It was further submitted that the Appellant admitted receipt of the termination notice but failed to lodge a reference within the period prescribed under Sections 6 and 10 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, with the consequence that the tenancy automatically terminated on 1st October 2024 by operation of law. 16.Counsel further submitted that the Appellant failed to prove the allegations that the Power of Attorney was forged, backdated or unregistered. Reliance was placed on Sections 107, 108, 109 and 112 of the Evidence Act, it being contended that the burden of proving fraud rested squarely upon the Appellant, who neither produced cogent evidence nor called a document examiner to substantiate the allegations. Counsel maintained that the registered Power of Attorney produced before the Tribunal conclusively demonstrated the 2nd Respondent's authority to issue the termination notice and that the Appellant's assertions amounted to mere allegations unsupported by evidence. 17.In support of their position, the Respondents relied on Jitendra Mathurdas Kanabar & 2 Others v Fish and Meat Limited [1997] KECA 57 (KLR), Runo v Gathoni (Environment and Land Appeal E015 of 2025) [2025] KEELC 6865 (KLR), Mohamed v Imani (Environment and Land Appeal 72 of 2021) [2023] KEELC 15761 (KLR) and Dhirajlal J. Shah & Rajesh Shah (Administrators of the Estate of Juthalal Virpal Shah) v Bonny Fashions Limited [2018] KEELC 639 (KLR) for the proposition that a tenancy automatically terminates where a tenant fails to challenge a termination notice within the statutory period. 18.On the burden and standard of proof in allegations of fraud and forgery, counsel relied on Pamela Aboo -Vs- Assets Recovery Agency & Another, Nairobi Civil Appeal No. 452 of 2018, Mshimba -Vs- Ackel & 3 Others (Civil Case 299 of 2017) [2022] KEHC 10071 (KLR), Christopher Ndaru Kagina -Vs- Esther Mbandi Kagina & Another [2016] eKLR, Gladys Wanjiru Ngacha -Vs- Teresa Chepsaat & 4 Others [2013] eKLR, Mutua -Vs- Ng'ang'a & Another (Civil Appeal 115 of 2018) [2023] KECA 1118 (KLR) and Re Estate of Thomas Mutua Mukumbu (Deceased) [2014] eKLR. Counsel accordingly urged the Court to find the appeal devoid of merit and dismiss it with costs. Issues for Determination 19.Having considered the Record of Appeal, the impugned Ruling, the Memorandum of Appeal, the rival written submissions, the authorities cited by the parties and the applicable law, it is the view of this Court that one issue falls for determination:a.Whether the Tribunal erred in law and in fact in dismissing the Appellant's Reference and Amended Notice of Motion. Analysis and Determination 20.This being a first appeal, this Court is under a duty to reconsider, re-evaluate and analyse the evidence on record and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify and should therefore make due allowance for that fact. This principle was aptly enunciated in Selle & Another -Vs- Associated Motor Boat Co. Ltd (1968) EA 123, where the Court held that a first appellate court is obliged to reconsider the evidence, evaluate it itself and draw its own conclusions, though always bearing in mind that it has neither seen nor heard the witnesses. 21.The sole issue falling for determination is whether the Tribunal erred in law and in fact in dismissing the Appellant's Reference and Amended Notice of Motion. The Appellant's challenge is principally founded on the contention that the termination notice dated 16th July 2024 was defective for want of compliance with Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, that the 2nd Respondent lacked the requisite authority to issue the said notice, and that the Tribunal improperly held that the tenancy had terminated by operation of law notwithstanding its earlier orders enlarging time for filing the Reference. The Respondents, on the other hand, maintain that the notice was validly issued pursuant to a registered Power of Attorney, that the Appellant failed to challenge the notice within the period prescribed under the Act, and that the Tribunal correctly dismissed the Reference. 22.The starting point is the statutory framework governing controlled tenancies. Section 4(2) of Cap. 301 requires that a landlord wishing to terminate or alter the terms of a controlled tenancy issue a notice in the prescribed form specifying, inter alia, the grounds for termination and the date upon which the notice is to take effect. Thereafter, Section 6(1) grants the receiving party one month within which to notify the issuing party whether the notice is opposed, while Section 6(2) obliges the receiving party, upon notifying the issuing party of such opposition, to refer the matter to the Tribunal before the effective date specified in the notice. In default, Section 10 provides that the notice takes effect on the date specified therein, thereby terminating or altering the tenancy in accordance with its terms. 23.The Appellant's first attack on the impugned decision concerns the validity of the termination notice dated 16th July 2024. It was argued that the notice was fatally defective because it failed to specify the particular premises to which it related, contrary to Section 4(2) of the Act. I have carefully examined the impugned notice contained in the Record of Appeal. The notice expressly states that it was issued under Section 4(2) of Cap. 301, specifies the effective date of termination as 1st October 2024, and sets out the ground for termination as being that “the landlord required possession of the premises as a whole for purposes of disposing of the same as a whole.” 24.While it is true that the notice does not expressly describe the demised premises as Shop No. 2, Smart Butchery, Seeb Apartments, Donholm, the omission must be considered in the context of the entire record. The Reference dated 27th September 2024, the accompanying application and the Appellant's affidavits all unequivocally identify the notice as relating to the Appellant's tenancy over Shop No. 2. Equally, the Appellant responded to the notice by his letter dated 13th August 2024, thereby demonstrating that he fully understood the premises to which the notice related and the action the landlord intended to take. The question therefore is not whether the notice attained absolute perfection, but whether it sufficiently conveyed to the Appellant the landlord's intention and enabled him to challenge it in accordance with the Act. 25.The Court of Appeal in Manaver Alibhai t/a Diani Boutique -Vs- South Coast Fitness & Sports Centre Ltd [1995–1998] 2 EA 163 underscored that the statutory procedure under Cap. 301 is mandatory and must be complied with. Equally, however, the purpose of the notice is to communicate the landlord's intention with sufficient clarity so that the tenant is not prejudiced in exercising the rights conferred under the Act. From the material before this Court, the Appellant cannot be said to have been misled or prejudiced by the manner in which the premises were described. Indeed, he promptly challenged the notice before the Tribunal on the very grounds now advanced before this Court. In those circumstances, I am not persuaded that the omission complained of, standing alone, rendered the notice invalid. 26.The Appellant further contends that the notice was invalid because it was issued by the 2nd Respondent, whom he maintains lacked the legal authority to act on behalf of the Landlord. That argument necessarily invites this Court to examine the validity and legal effect of the Power of Attorney relied upon by the Respondents, the allegations of forgery levelled against it, and whether the Tribunal properly evaluated the evidence before concluding that the 2nd Respondent had authority to issue the impugned notice. It is to that aspect of the appeal that I now turn. 27.The gravamen of the Appellant's complaint is that the Power of Attorney relied upon by the 2nd Respondent was backdated, unregistered and founded on forgery, with the result that the 2nd Respondent lacked the requisite authority to issue the impugned termination notice. The Respondents, however, maintained that the Power of Attorney was duly executed on 18th July 2023, registered on 19th July 2023, and lawfully conferred upon the 2nd Respondent authority to manage the suit premises on behalf of the 1st Respondent. The Tribunal accepted the Respondents' position and found that the 2nd Respondent possessed the necessary authority to issue the notice. 28.This Court has carefully reconsidered the evidence forming part of the Record of Appeal. Whereas the Appellant alleged that the Power of Attorney was forged, doctored and backdated, those allegations were not supported by any independent evidence. No handwriting expert, forensic document examiner or any other cogent evidence was tendered to demonstrate that the instrument was in fact forged or fraudulently procured. It is trite that allegations of fraud are of a serious nature and must not only be specifically pleaded but also strictly proved. The burden of proving such allegations rests upon the party asserting them. 29.The legal position on the burden of proof is well settled. Under Sections 107, 108 and 109 of the Evidence Act, the burden lies upon the person who desires the Court to give judgment as to any legal right or liability dependent upon the existence of certain facts to prove those facts. Further, the Court of Appeal in Central Bank of Kenya Ltd -Vs- Trust Bank Ltd & 4 Others [1996] eKLR reiterated that allegations of fraud require proof to a standard higher than a mere balance of probabilities. Having independently reviewed the record, I find no material upon which this Court can disturb the Tribunal's finding that the allegations of forgery were unsubstantiated. 30.In the absence of credible evidence impeaching the authenticity of the Power of Attorney, I find no basis for interfering with the Tribunal's conclusion that the 2nd Respondent acted within the authority donated by the 1st Respondent. Consequently, the Appellant's challenge to the validity of the termination notice on the ground that it was issued by an unauthorized person cannot be sustained. 31.The Appellant further argued that the Tribunal fell into error in holding that the tenancy had terminated by operation of law notwithstanding its earlier orders of 24th March 2025 enlarging time for filing the Reference. According to the Appellant, once leave had been granted for the Reference to be admitted out of time and deemed as properly filed, the Tribunal could not subsequently hold that the Reference was incompetent. 32.I have considered that argument alongside the Tribunal's reasoning. The record shows that the impugned notice specified 1st October 2024 as the effective date of termination. It is equally not disputed that the Reference was filed after the effective date specified in the notice. The Tribunal held that by virtue of Section 10 of Cap. 301, the tenancy had already terminated by operation of law and that it lacked jurisdiction to revive a tenancy that had ceased to exist. In reaching that conclusion, the Tribunal relied on, inter alia, Saheb -Vs- Hassanally (1973) EA 155 and Caledonia Supermarket Ltd v Kenya National Examinations Council [2000] eKLR, authorities which affirm that where no competent reference is lodged before the effective date stated in a statutory notice, the notice takes effect automatically by operation of law. 33.This Court appreciates the Appellant's concern regarding the orders made on 24th March 2025. However, those orders cannot be read in isolation from the statutory framework established under Sections 6 and 10 of Cap. 301. Jurisdiction under the Act is statutory and cannot be enlarged by consent or procedural orders where Parliament has expressly prescribed the legal consequences of failing to challenge a termination notice within the stipulated period. Once the statutory notice had taken effect, the Tribunal could not, through subsequent interlocutory orders, revive a tenancy that had already terminated by operation of law. I therefore find no error in the Tribunal's interpretation of the Act. 34.Having independently re-evaluated the pleadings, affidavits, documentary evidence and the rival submissions, I am satisfied that the Tribunal correctly directed itself on the applicable law and properly exercised its jurisdiction. The Appellant has not demonstrated that the Tribunal misapprehended the evidence, applied the wrong legal principles or arrived at findings unsupported by the material placed before it. The grounds of appeal therefore fail. 35.In the premises, I find that the Appellant has failed to establish any basis upon which this Court may interfere with the Tribunal's exercise of discretion or the conclusions reached in the impugned Ruling. The appeal is devoid of merit. Disposition 36.Consequently, this Court makes the following orders:a.The Appeal is hereby dismissed.b.The Ruling delivered on 29th August 2025 by the Business Premises Rent Tribunal in BPRT Case No. E1079 of 2024 is hereby upheld in its entirety.c.The Appellant shall bear the costs of this Appeal.It is so ordered. DATED, SIGNED AND DELIVERED VIA E-MAIL AT NAIROBI ON THIS 16TH DAY OF JULY, 2026.MOHAMMED N. KULLOWJUDGE