https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2967

Lotfa Resort Diani Ltd & another v Wanja (Civil Appeal E002 of 2025) [2026] KEELC 2967 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEELC 2967 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Civil Appeal E002 of 2025 LL Naikuni, J May 8, 2026 Between Lotfa Resort Diani Limited 1st Appellant Lotti Sharif Ali Aden 2nd Appellant and Phoebe Wanja Respondent Judgment I. Preliminaries 1.The Judgment herein pertains to an appeal lodged before this Honorable Court by Lofta Resort Diani Limited and Lotti Sharif Ali Aden, the 1st and 2nd Appellants herein. The appeal was filed through a Memorandum of Appeal dated 10th February, 2024 and a 199 pages Record of Appeal dated 28th April, 2025 against Phoebe Wanja, the Respondent herein. In a nutshell, the appeal revolves around the entire Ruling of Honourable Andrew Muma on 22nd December, 2024 in the case of:- “B.P.R.T Cause No. E287 of 2024”. 2.This is an appeal from the ruling of Hon. Andrew Muma, Member of the Business Premises Rent Tribunal (BPRT) delivered on 7th February 2025 in BPRT Case No. E287 of 2024. The Tribunal dismissed the Appellants’ preliminary objection challenging jurisdiction and held that a landlord–tenant relationship existed between the parties, thereby granting interim injunctive relief to the respondent. The Appellants, dissatisfied with that ruling, lodged the resent appeal. 3.On 28th July, 2025 the parties having fully complied with court’s direction in filing the written submissions and the fixing of the Judgment date which the parties discharged effectively. II. The 1st & 2nd Appellants’ case. 4.The Appellants prayed that:-a.The Appeal be allowed.b.The Ruling by Honourable Andrew Muma, be discharged and set aside the Orders herein made therein be vacated.c.The costs of this Appeal be borne by the Respondent. 5.From the filed Memorandum of Appeal, the Appellant averred as follows that:-a.The Honourable Magistrate erred in law and fact when he found that the Tribunal has jurisdiction;b.The Honourable Magistrate erred in law and fact when he dismissed the Appellant's Preliminary Objection dated 22nd December, 2024; andc.The Honourable Magistrate erred and misdirected himself regarding the legal and factual issues raised before him.d.The Honourable Magistrate erred in law and fact by finding that the booking of several hotel rooms and part payment thereof by the respondent constituted a business venture worth invoking the tribunal's jurisdiction.e.The Honourable Magistrate erred in law and fact by clothing the tribunal with jurisdiction that emanated outside the perimeters of the parent Act. 6.From the filed pleadings, the respondent, Phoebe Wanja, filed a reference, plaint, and application dated 17th December 2024 seeking declarations that her eviction from Apartments 401 – 403 at Lotfa Resort Diani was unlawful, together with injunctive relief, damages for loss of business, and compensation. She relied on invoices and Mpesa payments allegedly made to the appellants. 7.The Appellants denied the existence of a tenancy, contending that the Respondent was never in occupation, that the invoices remained unpaid, and that the Tribunal lacked jurisdiction under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. III. The Submissions 8.On 26th May, 2025, as stated the Appeal being the Memorandum of Appeal dated 10th February, 2025 and the 199 pages Record of Appeal dated 28th April, 2025, was admitted and directions given pursuant to the provision of Section 79 B of the Civil Procedure Act, Cap. 21 and Order 42 Rules 11, 13 & 16 of the Civil Procedure Rules, 2010, specifically in the presence of all the parties. 9.Ideally, the Honorable Court directed that the said appeal be disposed of by way of written submissions with given stringent time lines. Pursuant to that the parties herein fully complied. The Honourable Court reserved a Judgment on notice. Eventually, the Judgement was delivered on 8th May, 2026 accordingly. A. The Written Submission by the Appellants 10.The Appellant through the Law firm of Messrs. Waziri Omollo & Company Advocates filed their written submissions dated 24th July, 2025. Mr. Waziri Advocate commenced his submissions by stating that before this Honourable Court was the Appellant’s Memorandum of Appeal dated 10th February, 2024 and Record of Appeal dated 28th April, 2025. 11.On the factual background of the case, the Learned Counsel submitted that the Respondent herein Phoebe Wanja, filed a Reference, Notice of Motion Application and Plaint dated 17th December 2024, as a Tenant against the Appellants, Lofta Resort Diani Limited and Lotti Sharif Ali Aden, as the 1st and 2nd Defendant/Landlord at the Business Premises Rent Tribunal seeking:a.A declaration that the eviction of the Plaintiff/Tenant from Diani Beach Road Apartment 401,402,403 at LOFTA RESORT, DIANI, is irregular, unlawful, malicious;b.A permanent injunction restraining the 1st and 2nd Defendant/Landlord from evicting the Tenant, closing the business premises or stopping the Tenant from enjoying quiet possession.c.An order directing the 1st and 2nd Defendant to pay for loss of business at a rate of Kshs.25,000 per unit and per day of the 4 units.d.General damages for loss of consumer goodwille.Interestf.Costs of the suit 12.The Tribunal, on 18th December 2024, through an order, granted the tenant a temporary injunction against the Respondents from evicting the tenant, closing the premises and/or stopping the tenant from enjoying quiet possession of the said premises. The Tribunal also ordered the Applicant to serve the Application for inter partes hearing on 9th January 2024. The Respondents responded through a Notice of Preliminary Objection dated 22nd December, 2024 and a Replying Affidavit sworn by Fadumo Ibrahim Sharif, dated 14th January, 2024 challenging the jurisdiction of the Tribunal on the basis that there was no tenancy relationship between the Applicant and the Respondents therein. 13.The Tribunal delivered a Ruling delivered by Hon. A. Muma on 7th February 2025. The Ruling gave the following orders:a.The Landlord’s Preliminary Objection dated 22nd December 2022 is hereby dismissed.b.The matter shall be fixed for hearing on 13th March, 2025c.Proceedings to be typedd.Orders of 17th December, 2024 by Hon. Gad J. remain in force, OCS to ensure compliance and to break in if need be.e.Inspector to visit the premises and file a report on the set up of the Apartments 401,402,403 and 404 to confirm whether they are within Lofta Resort Diani Limited in the presence of all parties before the hearing.f.Costs in the cause. 14.The Appellants herein filed a Memorandum of Appeal dated 10th February, 2025 and a Record of Appeal dated 28th April 2025 before this Honourable Court to appeal the Ruling of the Business Premises Rent Tribunal delivered by Honourable Andrew Muma on 7th February, 2025. 15.On the issues arising for determination by the Honourable Court, the Learned Counsel relied on the three ( 3 ) issues. Firstly, on whether there was a landlord – tenant relationship between the parties herein, the Learned Counsel submitted that the Business Premises Rent Tribunal deals with controlled tenancies which are described in the provision of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 as follows:-“controlled tenancy” means a tenancy of a shop, hotel or catering establishment-(a)which has not been reduced into writing; or(b)which has been reduced into writing and which-(i)is for a period not exceeding five years; or(ii)contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; or(iii)relates to premises of a class specified under subsection (2) of this section: 16.The provision of Section 107 of the Evidence Act, Cap. 80 stipulates as follows regarding the legal burden of proof.“ 107.Burden of proofWhoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 17.Sections 109 and 112 of the Evidence Act, Cap. 80 however, provides as follows regarding the evidential burden of proof:“ 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 18.They submitted that the Respondent/Tenant failed to discharge this burden of proof as she placed reliance on an unpaid invoice and copies of random and obscure Mpesa payments. Furthermore, the Respondent/Applicant was not in occupation of the said premises when she filed her Reference, Notice of Motion Application and Plaint dated 17th December, 2024.This is substantiated by the fact that the Respondent/Tenant deponed in paragraph 7 of her own Supporting Affidavit where she states that she could not access the premises on 13th December, 2024. This admission clearly shows that the landlord-tenant relationship had been terminated, if it at all existed as she alleges. 19.They sought to rely on the case of:- “Republic – Versus - Chairperson, Business Premises Rent Tribunal at Nairobi Ex - Parte Suraj Housing & Properties Limited & 2 Others (2016) eKLR” at page 7/11 where the court cited with approval the decision in the case:- “Pritam – Versus - Ratilal & Another(1972)EA 560” as follows:-“As stated in the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act itself, it is an Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto. The scheme of this special legislation is to provide extra and special protection for tenants. A special class of tenants is created. Therefore, the existence of the relationship of landlord and tenant is a pre requisite to the application of the Act and where such relationship does not exist or it has come to or been brought to an end, the provisions of the Act will not apply. The applicability of the Act is a condition precedent to the exercise of jurisdiction by a tribunal: otherwise, the tribunal will have no jurisdiction. There must be a controlled tenancy as defined in section 2 to which the provisions of the Act can be made to apply outside it, the tribunal has no jurisdiction” 20.They also sought to rely on the case of:- “Michael Gachie Mwarangu – Versus - Peter Gichuru Maina & 2 others [2016] eKLR” where the High Court stated as follows:-“Citing Narshidas & Co. Limited (Supra), a tenant faced with an illegal threat of forcible eviction cannot go to the BPRT for an injunction order against the landlord. The tribunal has no jurisdiction. His remedy lies in the civil courts, either the Chief Magistrates Court or the High Court, for a remedy for breach of contract or trespass. Once a tenant is evicted, the BPRT ceases to have jurisdiction on subsequent actions as a Landlord-Tenant relationship ceases to exist. See also Muudia – Versus - Lolchoki (1976) KLR 284.” 21.It is trite law that jurisdiction is everything and where a court or tribunal lacks jurisdiction it must down its tools. This was held in “Civil Appeal No. 50 of 1989 Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil Kenya Limited” at page 8 where the Court stated that:“Where a Court takes upon itself to exercise a jurisdiction where it does not possess its decision amounts to nothing.” 22.In view of the foregoing, it was clear that the BPRT Tribunal lacked the jurisdiction to hear and determine the matter herein. 23.Secondly, on whether the Tribunal had jurisdiction to hear and determine the matter. The Learned Counsel averred that the provision of Section 12 of the Act provides for the powers of the Tribunal. They submitted that under the Act, the Tribunal does not the jurisdiction to issue tenant initiated recovery of possession. The provision of Section 12 (1) (e) of the Act empowers only landlords to recover possession. They sought to rely on the case of:- “Republic – Versus - Business Premises Rent Tribunal & 2 Others (2013) eKLR” which in paragraph 31 cited with approval the case of:- “Re Hebtulla Properties Limited [1979] KLR 96; [1976-80]1 KLR 1195” as follows:“ 31.One may be tempted to argue that the said provision gives the Tribunal the powers to deal with any dispute and grant any appropriate orders. However, Simpson and Chesoni, JJ (as they were) in Re Hebtulla Properties Limited [1979] KLR 96; [1976-80J1KLR 1195 dealt in extenso with the provisions of Section 12 of the said Act. Simpson, J held inter alia as follows:.......The specific powers include the powers to make an order for the recovery of possession from a tenant, or indeed from any person in occupation. Such an order would be an order made on an application of the landlord. No corresponding power is given to make an order on the application of a tenant who has been forcibly dispossessed by a landlord. The powers specifically conferred can be exercised on a reference, which is defined in section 2 as "a reference to a tribunal under section 6 of this Act”......The powers of the tribunal are contained in section 12(1) of the Act and anything not spelled out to be done by the tribunal is outside its area of jurisdiction. It has no jurisdiction except for the additional matters listed under Section 12(1)(a) to (n). The Act was passed so as to protect tenants of certain premises from eviction and exploitation by the landlords and with that in mind the area of jurisdiction of the tribunal is to hear and determine references made to it under section 6 of the Act. Section 9 of the Act does not give any powers to the tribunal, but merely states what the tribunal may do within its area of jurisdiction......It would be erroneous to think that Section 12 (4) confers on the tribunal any extra jurisdiction to that given by and under the Act elsewhere. For example it is not within the tribunal's jurisdiction to deal with criminal acts committed in relation to any tenancy nor is it within its jurisdiction to entertain an action for damages for trespass. These are matters for the courts and the tribunal cannot by way of a complaint to it by the landlord or tenant purport to deal with matters. Section 12 (4) of the Act must be read together with the rest of the Act and, when this is done it becomes apparent that the complaint must be about a matter the tribunal has jurisdiction to deal with under the Act and that is why the complaint has to relate to a controlled tenancy.... The Act uses the words “any complaint” and the only qualification is that it must be “relating to a controlled tenancy”..... The “recovery of possession” under section 12(1)(e) of the Act mean and means, recovery of possession by, and not from the landlord. The legislature deemed in necessary to empower the tribunal to order recovery of possession by the landlord. If the reverse had been intended it would have been expressly provided since the intention of the Act is to protect tenants. It is therefore clear that Parliament never intended that the tribunal should have power to order recovery of possession by a tenant where such possession has been seized by a landlord and it never gave that power to the tribunal. That power cannot be implied. In the premises “forcible taking of possession” is not a matter within the area of jurisdiction of a tribunal and that being the case, the tribunal cannot investigate any complaint about forcible possession of the premises by a landlord, such matter being for the courts. The complaint was outside the area of jurisdiction of the tribunal and jurisdiction was wanting.” 24.The Learned Counsel submitted that the Respondent/ Tenant was not in possession of the said premises when she filed her Reference, Notice of Motion Application and Plaint dated 17th December, 2024. This was substantiated by the fact that the Respondent/Tenant deponed in Paragraph 7 of her own Supporting Affidavit as follows:“That on 13th December, 2024 I visited my business premises but the Landlord/Respondents declined to grant me access without any lawful reason or authority.” 25.From the foregoing it is clear that the Tribunal did not have the jurisdiction to hear and determine the matter and grant the break in orders vide the Ruling dated 7th February 2025 since the Respondent/Tenant was not in possession of the suit premises at the time she filed her Reference, Application and Suit as well as at the time the Ruling was delivered. They submitted that the Tribunal never had jurisdiction to hear and determine matters where the landlord-tenant relationship has not been determined. 26.Thirdly, on whether the Tenant/Respondent herein met the threshold to warrant grant of orders. The Learned Counsel submitted that the Respondent/Tenant did not met the threshold for the issuance of break in orders, which are mandatory in nature as granted in the impugned Ruling. They relied on the case of “Vulpine Investments Limited – Versus - Posstone Limited & another (2021) eKLR” which dismissed the Plaintiff's Application seeking a mandatory injunction to evict the Defendants since it had not met the threshold set in granting a mandatory injunction. The Court cited the case of “Kenya Breweries Limited – Versus - Washington Okeyo (2002) EA 109” in dismissing the Application as follows:“On the issue of a mandatory injunction seeking eviction of the Defendants from the suit land, I wish to make reference to the case of Kenya Breweries Limited – Versus - Washington Okeyo (2002) EA 109 where the Court of Appeal held that:-“a mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally, be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is simple and summary one which can be easily remedied, or if the Defendant attempted to steal a march on the Plaintiff, a mandatory injunction will be granted on an interlocutory application.” 27.The Respondent/Tenant did not demonstrate the existence of any special circumstances in this case to warrant the grant of a mandatory injunction. They also submitted that the Respondent/Tenant did not meet the threshold to warrant the grant of a temporary injunction as stipulated in the case of:- “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [2014] eKLR” cited with approval the case of “Giella – Versus - Cassman Brown (1973)E.A 358” and stated that:“Since those principles are already codified by authoritative pronouncements in the precedents they may be conveniently noted in brief as follows:In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a)establish his case only at a prima facie level,(b)demonstrate irreparable injury if a temporary injunction is not granted, and(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour.These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. (...)” 28.They submitted that the Respondent/Tenant failed to establish a prima facie case as she could not establish the existence of a landlord-tenant relationship. The Respondent/Tenant also failed to prove that she was carrying on the Air B n B business she alleges as she failed to produce a business name, proof of earning, commensurate tax payment, filed tax returns, business permit, license, bWIBA Insurance and/or a valid lease or tenancy agreement. All she produced were obscure whatsapp screenshots with unknown persons claiming to be clients and random mpesa payments and receipts buying furniture and electronics that could well have been for personal use. 29.They also submitted that, the Respondent failed to demonstrate irreparable injury as all she produced were screenshots from alleged and unknown customers and clients claiming they were seeking accommodation at certain prices. Even if this Honourable Court was to accept this ‘evidence’ as sufficient, the said losses can all be remedied in monetary terms and so does not constitute irreparable injury.The impugned Ruling was only supposed to determine the Appellant/Landlord's Preliminary Objection dated 22nd December 2022 but the Tribunal, without the requisite jurisdiction, overstepped its authority and prematurely issued break in orders to the Respondent/Tenant before hearing and determining the Tenant's substantive Application. They also submitted that the balance of convenience was in maintaining the status quo to avoid prejudicing any party pending the determination of this matter on its merits in a full trial. 30.In conclusion, the Learned Counsel submitted that it was clear from the foregoing that the Honourable Tribunal had no jurisdiction to hear and determine the matter herein. The instant Appeal was, therefore, merited. They urged this Honourable Court to allow the Appeal with costs. B. The Written Submissions by the Respondent 31.The Respondent through the Law firm of Messrs. Rongoma Janji & Associates Advocates, filed their written submissions dated 3rd September, 2025. Mr. Janji Advocate submitted that pursuant to the Court’s directions that parties dispose of the Appeal by way of Written Submissions these were the Respondent’s Written Submissions. At the outset, they submitted that the Waziri Omollo and Company Advocates was not properly on record within the meaning of the provision of Order 9, Rule 9 of the Civil Procedure Rule, 2010 as no leave was sought to come on record and also no consent was filed in the court. As such their pleadings and submissions are not properly before this Honorable Court. 32.The provision of Order 9, Rule 9 of the Civil Procedure Rules, 2010 provides as follows:-“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be.” 33.Further, the provision of Order 9, Rule 10 provides:-“An application under rule 9 may be combined with other prayers provided the question of change of Advocate or party intending to act in person shall be determined first.” 34.According to the Learned Counsel, it is trite that the duty of a court of first appeal in Kenya was to re-evaluate and reassess all the evidence presented in the trial court and make its own independent conclusions, while acknowledging that the trial court had the advantage of seeing and hearing the witnesses firsthand. This involves reconsidering the facts, both in law and fact, to determine if the lower court's findings were correct. 35.On the Analysis of factual background and evidence. The Learned Counsel asserted that the Respondent filed a Notice of Motion Application dated 17th December, 2024 and a Reference of even date.At the outset the Respondent averred that the Landlord/Respondent purported to unlawfully evict her from the business premises without notice. It bears noting that the Appellants did not present to the trial court any evidence of a notice that they issued to the Respondent.The Respondent also averred in her Supporting Affidavit that the Appellants have interfered with her peaceful occupation and enjoyment of the premises by locking up the premises as means of harassing and coercing her to give in to their unlawful machination to interfere with the tenancy. 36.The Respondent averred with evidence annexed in her supporting affidavit, that more significantly, she had FULLY PAID RENT for the month of November and December, 2024 as is evidenced in the Receipt dated 4th November, 2024 issued by the Appellants and MPESA Payment of the tune of a sum of Kenya Shillings Seventy Thousand (Kshs. 70, 000/=) on 7th December, 2024, MPESA Payment of a sum of Kenya Shillings Thirty Thousand (Kshs. 30,000/=) on 10th December, 2024, MPESA Payment of a sum of Kenya Shillings One Hundred Thousand (Kshs. 100,000/=) on 11th December, 2024 sent to Ali Aden the 2nd appellant herein and Lotfa Resort Diani limited the 1st Appellant. The Tenant Annexed and marked as ‘PA -2a’ was a copy of the Receipt dated 4th November, 2024 issued by the Appellants showing payment for rent for the four units, Apartment numbers 401, 402, 403 and 404 at Lotfa Resort Diani. 37.The Appellants never denied that they received money from the Respondent being payment of Rent. The Respondent also annexed and marked as ‘PA -2b’ was a copy of the MPESA Payment of Kenya Shillings Seventy Thousand (Kshs. 70, 000.00/=) on 7th December, 2024, MPESA Payment of a sum of Kenya Shillings Thirty Thousand (Kshs. 30,000.00/=) on 10th December, 2024, MPESA Payment of a sum of Kenya Shillings One Hundred Thousand (Kshs. 100,000.00/=) on 11th December, 2024 sent to Ali Aden the 2nd Appellant herein and Lotfa Resort Diani Limited the 1st Appellant. 38.Noteworthy, these Mpesa payments were made to Lotfa Resort Diani Absa account and phone numbers used by the Lotti Sharif Ali Aden and Fadumo Ibrahim Sharif who were the directors of Lotfa Resort Diani. the phone numbers where payments were made have been used by the directors of the company to communicate with the Respondent throughout the tenancy period and this shall be demonstrated with more evidence at the main suit hearing. Furthermore, the directors of the company are foreigners as per the CR - 12 Form annexed in the Tenants Supporting affidavit and it appears that they have registered the numbers they use for the business with other names. 39.According to the Learned Counsel, it was also imperative to note that the Appellants never denied in any of its pleadings in the trial having accepted payment as rent from the Respondent as was evidenced in the annexures highlighted above and attached in the Tenants supporting affidavit. Further the Appellants never denied that it issued a rent payment receipt annexure marked as PA -2a’ annexed in the Tenants Supporting Affidavit. The Respondent avers in her supporting affidavit at the trial court that she FULLY FURNISHED all the said apartments and paid for marketing and advertisements using her personal financial resources as is evidenced in the various receipts annexed herein and MPESA payments dated 25th November, 2024, MPESA payments dated 30th November, 2024, MPESA payments dated 29th November, 2024, MPESA payments dated 5th December, 2024, and MPESA payments dated 11th December, 2024. 40.According to the Learned Counsel, the Respondent Annexed and marked as ‘PA -3a’ was a copy of the receipts showing purchase of various house hold items and; the Respondent also Annexed and marked ‘PA -3b’ being copy of the MPESA payments dated 25th November, 2024, MPESA payments dated 30th November, 2024, MPESA payments dated 29th November, 2024, MPESA payments dated 5th December, 2024, and MPESA payments dated 11th December, 2024. 41.Further the Learned Counsel submitted that at the hearing and in its further affidavit the Tenant shall and intended prove before the Tribunal video evidence showing how she furnished the apartments and how she brought the house-hold items in the apartments. The Appellants not deny in any of their pleadings that the Respondent fully furnished the subject apartments as she demonstrated by way of the annexure evidence in her supporting affidavit. The Appellant did not give evidence of any notice of eviction or the actual eviction itself. 42.The Learned Counsel relied on the following four ( 4 ) issues for determination in view of the facts and evidence before this Honourable Court, and the Appellant’s Memorandum of Appeal dated 10th February, 2025. Firstly, on whether the Tribunal has Jurisdiction within the meaning of the provision of Section 2 of the Act and whether there is a Landlord Tenancy Relationship between the parties within the meaning of Section 2 of the Act, the Learned Counsel submitted that the Appellant’s Appeal is not merited and should be dismissed with costs. They say so for the reasons hereunder. A cursory perusal of the record of appeal before this Honorable Court leaves one inescapable conclusion; that the dispute between the Appellant and the Respondents relates to a tenancy within the meaning of Section 2 of the Cap. 301. What was more, at the trial court the Appellants have not deny the existence of a Landlord - Tenant relationship between the parties herein. 43.The provision of Section 2 of Cap. 301 provides that “controlled tenancy” means a tenancy of a shop, hotel or catering establishment—(a)which has not been reduced into writing; or(b)which has been reduced into writing and which—i.is for a period not exceeding five years; orii.contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof; 44.It was their humble submissions that the Landlord - Tenancy relationship in the instant case falls within the definition under Section 2 of Cap. 301 as the tenancy relates to a business premises that is hotel. Further, the provision of Section 2 of Cap. 301 provides that:-“hotel” means any premises in which accommodation or accommodation and meals are supplied or are available for supply to five or more adult persons in exchange for money or other valuable consideration’’ 45.It had not been denied according to the Learned Counsel by the Appellants that the suit premises (Apartment numbers 401, 402, 403 and 404 at Lotfa Resort Diani) was a premises in which accommodation or accommodation and meals are supplied. They thus submitted that this tribunal has jurisdiction to hear ad determine the matters herein. Furthermore, the at trial the Respondent Annexed and marked as ‘PA -2a’ was a copy of the recent Receipts dated 4th November, 2024 issued by the Appellant showing payment for rent for the four units, Apartment Numbers 401, 402, 403 and 404 at Lotfa Resort Diani for the month of November and December. In addition, the Landlord errors by contending that rent was not paid whereas the Tenant has annexed MPESA messages in its annexures by way of MPESA Payment of a sum of Kenya Shillings Seventy Thousand (Kshs. 70,000.00/=) on 7th December, 2024, MPESA Payment of a sum of Kenya Shillings Thirty Thousand (Kshs. 30,000.00/=) on 10th December, 2024, MPESA Payment of a sum of Kenya Shillings One Hundred Thousand (Kshs. 100,000.00/=) on 11th December, 2024. 46.It was their humble submissions that these MPESA payments were made to Lotfa Resort Diani Absa account and phone numbers used by the Lotti Sharif Ali Aden and Fadumo Ibrahim Sharif who were the directors of Lotfa Resort Diani the phone numbers where payments were made have been used by the directors of the company to communicate with the Respondent throughout the tenancy period and this shall be demonstrated with more evidence at the main suit hearing. 47.Secondly, on the issue of ‘unlawful termination of a tenancy’. The Learned Counsel relied on the provision of Section 4(1) of Cap. 301 provides that:-“Notwithstanding the provisions of any other written law or anything contained in the terms and conditions of a controlled tenancy, no such tenancy shall terminate or be terminated, and no term or condition in, or right or service enjoyed by the tenant of, any such tenancy shall be altered, otherwise than in accordance with the following provisions of this Act.’’ 48.It was their humble submission that the Appellants’ action cited in the supporting affidavit of the Respondent at the trial court, were not in accordance with the provisions of Cap. 301. The tenancy had not been terminated in the manner contemplated by law. 49.The provision of Section 4 (2) of Cap. 301 provides that:-“a landlord who wishes to terminate a controlled tenancy, or to alter, to the detriment of the tenant, any term or condition in, or right or service enjoyed by the tenant under, such a tenancy, shall give notice in that behalf to the tenant in the prescribed form’’. 50.It was their submissions that the Appellants being the Landlord never adhered to the provision of Section 4 (2) of the act as they did NOT issue any notice of termination of the tenancy. As such the tenancy still subsists. The provision of Section 7 of Cap. 301 provides ‘’Grounds on which landlord may seek to terminate tenancy’’. It was their humble submission that in the instant case, the Appellant never presented any evidence to show that the grounds under the provision Section 7 of Cap. 301 were satisfied before subjecting the tenant to harassment. The Appellant errored in submitting that it can evict and harass a tenant in line with their temporal interest and by whim and caprice. It errored by submitting that the power to evict a tenant is unfettered and that no grounds must be adduced by a landlord. 51.It was their respectful submissions that an eviction is only deemed successful if it is done in a manner contemplated in law. As a matter of fact all the evidence in the annexures of the supporting affidavit of the Appellant at trial remained uncontroverted. More significantly, the provision of Section 12 of Cap 301 provides for the ‘’Powers of the Tribunal’’ herein; It provides thus:-(1)A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power;(a)to determine whether or not any tenancy is a controlled tenancy (b)….(c)…..(d)….(e)to make orders, upon such terms and conditions as it thinks fit, for the ‘recovery of possession’ and for the payment of arrears of rent and ‘mesne profits’, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy;(l)‘to award compensation for any loss incurred by a tenant on termination of a controlled tenancy’’ in respect of goodwill, and improvements carried out by the tenant with the landlord’s consent; 52.It was their humble submissions that the tribunal has power to issue the orders sought by the Respondent in its reference at the trial court including but not limited to the question of recovery of possession, payment of compensatory damages, and break in orders. By the provision of Section 12 of Cap. 301 a Tenant can also recover the cost of the improvements that she made in the four-unit apartments subject of the suit herein. By Virtue of the provision Section 12 of Cap. 301 a Tenant can also be awarded compensation for the loss that she incurred as a result of the unlawful actions of the Landlord as is evidenced in the Tenant Supporting Affidavit. 53.It also gave added relevance to note that even if the Appellant sort to recover possession of the business premises from the Tenant, the same can only be done through an order of this tribunal and the same must be within the grounds of termination espoused under the provision of Section 12 of Cap. 301 and all the relevant procedures of the act.Taking into account the totality of the above, it was their humble submission that the Appellant’s Appeal was devoid wholly misplaced, incompetent, was null and void from inception. 54.In any event, they submitted that this Honourable Tribunal must find that the Landlord Preliminary Objection dated 22th December, 2022 was NOT merited. 55.Thirdly, on what orders should be made as to costs. The Learned Counsel submitted that the award of costs is discretionary. However, Courts should be guided by the principle that ‘costs follow the event’ The effect being that the party who calls forth the event by instituting the Suit/Application, will, bear the costs if the suit/application fails. However, if this party shows legitimate occasion, by successful suit/application, then the Respondents will bear the costs. 56.In conclusion, the Learned Counsel averred that the premise of the foregoing depositions is that the Honourable Court must find that the instant Appeal was NOT merited. Thus the same ought to be dismissed with costs to the Respondent. The authorities relied upon were annexed hereto and highlighted appropriately for the Court’s convenience. IV. Analysis and Determination 57.I have had a chance to critically assess all the pleadings filed in this Appeal being the 199 Pages Record of Appeal dated 28th April, 2025 and its contents, the Memorandum of Appeal dated 10th February, 2025 by the 1st 1ne 2nd Appellants, the written submissions of both the parties, the Plethora of cited authorities by the parties, the relevant provisions of the Constitution of Kenya, 2010 and the statutes. 58.Before I analyze the issues surrounding this appeal. I need to deal with matter raised by the Respondent and that is whether the law firm of Messrs. Waziri Omollo & Company Advocates are properly on record. The question before the court is whether Waziri Omollo & Company Advocates are properly on record in this appeal, given the requirements of the provision Order 9 of the Civil Procedure Rules, 2010. The provision of Order 9 Rule 9 provides that after Judgment has been delivered, a party may only change advocates or act in person if:a.An application is made with notice to all parties, orb.A consent is filed between the outgoing and incoming advocates 59.The provision of Order 9 Rule 10 allows such an application to be combined with other prayers, but the issue of representation must be determined first. The purpose of these provisions is to safeguard the integrity of proceedings after judgment and prevent surprise or prejudice to the opposing party. 60.The Respondent submits that the Law of Messrs. Waziri Omollo & Company Advocates are not properly on record because: No leave of court was sought to replace the previous advocates. No consent between outgoing and incoming advocates was filed. Consequently, their pleadings and submissions are irregular and not properly before the court. 61.This objection is premised on the fact that the Tribunal had already delivered its ruling on 7th February 2025, which constitutes a “Judgment” for purposes of Order 9 Rule 9.The Appellants filed their Memorandum of Appeal and submissions through Messrs. Waziri Omollo & Company Advocates without first seeking leave or filing consent. The record does not show compliance with Order 9 Rule 9. 62.The provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010 will guide this court on this issue. It provides:-When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be. 63.The procedure set out in very clear terms in the provision of Order 9 Rule 9 is that in a case where a party engages an advocate after judgment has been entered or decides to act in person; such change shall be only effected with an order of the court. All parties and the advocate on record for the party seeking such change must be served with the application seeking the orders or by consent between the outgoing and the incoming advocate. 64.This provisions never impeded the right of a party to be represented by an Advocate of his/her choice, but sets out the procedure to be adhered to when a party wants to change Counsel after Judgment has been delivered so as to avert any misunderstanding between outgoing and incoming advocate. Thus a party so wishing to change his counsel must notify the Court and other parties. The reasoning behind the provision was well articulated in the case of:- “S. K. Tarwadi – Versus - Veronica Muehlmann [2019] eKLR” where the judge observed as follows:-“……In my view, the essence of the Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him….” 65.Kenyan courts have consistently held that a new advocate who comes on record after judgment without leave or consent is improperly on record. Pleadings filed in such circumstances are defective until the defect is cured.However, courts may invoke the provision of Article 159(2)(d) of the Constitution to overlook technicalities and allow substantive justice to prevail, provided no prejudice is caused.Cases such as the case of:- “Lalji Bhimji Sanghani Builders & Contractors – Versus - City Council of Nairobi [2012] eKLR” and “S.K. Tarwadi – Versus - Veronica Muehlmann [2019] eKLR” affirm this strict but curable interpretation. 66.I find that the Law firm of Waziri Omollo & Company Advocates are not properly on record within the meaning of the provision of Order 9 Rule 9 of the Civil Procedure Rules, 2010. Their pleadings and submissions are procedurally defective. Nonetheless, this defect is not fatal and may be cured by compliance. The court may, in the interest of justice, grant leave to regularize representation so that the appeal is determined on its merits rather than dismissed on a technicality. I shall now proceed with the determination of the Appeal on merits. 67.For the Honorable Court to be in a proper position to arrive at an informed, plausible, just, fair and reasonable decision from the filed Appeal by the Appellants herein, the Honorable Court has condensed the subject matter into the following five (5) salient issues for its determination. These are:-a.Whether a Landlord – Tenant relationship existed between the parties.b.Whether the BPRT had jurisdiction to entertain the dispute.c.Whether the Tribunal erred in granting interim “break – in” and possession orders.d.What orders should issue.e.Who will bear the costs of the Appeal? ISSUE No. (a) Whether a Landlord – Tenant relationship existed between the parties. 68.Before embarking on the issues for analysis under this sub-heading as indicated earlier in the Judgement the Honorable Court in a preamble form the court makes two assertions. First on the re-evaluation of the evidence from trial court and secondly the brief facts of this case. This is a first appeal. In the case of “Kenya Ports Authority – Versus - Kuston (Kenya Limited, (2009) 2 EA 212” this Court stated as follows regarding the duty of first appellate court:-“This being a first appeal to this Court, the duty of the court, is to reconsider the evidence, evaluate and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect…” 69.Similarly, in the case of “Peter – Versus - Sunday Post Limited 1958 E.A. 424” Sir Kenneth O’Connor P. rendered the applicable principles as follows:-“It is a strong thig for an appellate court to differ from the finding on a question of facts, of the judge who tried the case and who had the advantage of seeing and hearing the witnesses. An appellate court has indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon the evidence should stand. But this is a Jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a different conclusion….” 70.Under this sub-title, the Honourable Court shall examine whether, on the facts presented, a Landlord – Tenant relationship exists between the parties, guided by statutory provisions and Kenyan case law.The starting point is the provision of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 of the Laws of Kenya, which defines a controlled tenancy as:“a tenancy of a shop, hotel or catering establishment—(a)which has not been reduced into writing; or(b)which has been reduced into writing and which—(i)is for a period not exceeding five years; or(ii)contains provision for termination otherwise than for breach of covenant within five years from the commencement thereof.” 71.The term “landlord” is defined at the provision of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act to mean the person for the time being entitled, as between himself and the tenant, to the rents and profits of the premises payable under the terms of the tenancy. It should be noted that relationship is subjective, as between the landlord and the tenant. The section defines “tenant” to mean the person for the time being entitled to the tenancy whether or not he is in occupation of the holding, and includes a Sub - Tenant. Thus, it seems to me that as between tenant and landlord, the landlord does not necessarily have to be the person who is legally entitled to or who is the proprietor of the premises. 72.This provision is deliberately broad. Parliament recognized that many business premises, particularly hotels and catering establishments, operate under informal arrangements. Thus, the absence of a written lease does not negate the existence of tenancy. What matters is whether the essential ingredients of tenancy—identifiable landlord, identifiable tenant, identifiable premises, and payment of rent—are present. 73.The Respondent relies on invoices and Mpesa payments allegedly made to the Appellants. If credible, such evidence may establish rent payment and thus tenancy.However, the Respondent admitted in her affidavit that she was denied access to the premises on 13th December, 2024, before filing her reference. This admission suggests dispossession had already occurred. 74.In the case of:- “Michael Gachie Mwarangu – Versus - Peter Gichuru Maina & 2 Others [2016] eKLR”, the Court opined that once a tenant is evicted, the BPRT ceases to have jurisdiction, since the landlord–tenant relationship has ended. Remedies thereafter lie in civil courts for trespass or breach of contract or any other available remedy. Following this decision, once a tenant is evicted or denied possession, the Landlord – Tenant relationship ceases, and the Tribunal cannot order recovery of possession in favour of the tenant.The Tribunal’s reliance on the provision of Section 2 of Cap 301 to infer tenancy was correct in principle, but its application falters where occupation and possession are absent. 75.The Honourable Court finds that while the provision of Section 2 of Cap. 301 recognizes unwritten tenancies, the Respondent’s dispossession prior to filing suit undermines the existence of a subsisting Landlord – Tenant relationship. Jurisdiction of the Tribunal is contingent upon such a relationship. In line with the legal ratio founded in the case of:- “Michael Gachie Mwarangu (supra)”, it is this Court’s holding and in concurrence with the Leraned Counsel for the Appellants’ submission that the Tribunal erred in holding that tenancy subsisted when the respondent was already out of possession. ISSUE No. (b) Whether the BPRT had jurisdiction to entertain the dispute property. 76.Under this sub-title, the Honourable Court shall examine whether the Business Premises Rent Tribunal (BPRT) is properly clothed with jurisdiction to entertain the dispute between the parties. It is instructive to note that this issue has been expansively deliberated herein but still the Honourable Court wishes to spend some slight moment on it for clarity sake. Certainly, the issue of jurisdiction first needs to be determined before I can even consider the merits of the case. It follows that if the BPRT did not have jurisdiction to hear the dispute, then its decision is a nullity. If I find that the decision of the BPRT is a nullity then I need not consider the merits or otherwise of the appeal. The result will be that the entire proceedings and Judgment of the BPRT will have to be set aside for want of jurisdiction. 77.The Respondent relies on invoices and Mpesa payments allegedly made to the Appellants. While such evidence may suggest rent payment, the Respondent admitted in her affidavit that she was denied access to the premises on 13th December, 2024, before filing her reference.This admission indicates dispossession had already occurred. 78.From a legal point of view, the BPRT is a creature of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Laws of Kenya. The preamble to the statue provides that it is “An Act of Parliament to make provision with respect to certain premises for the protection of tenants of such premises from eviction or from exploitation and for matters connected therewith and incidental thereto” (emphasis mine). 79.Under the provision of Section 2 of the Act, “controlled tenancy” means a tenancy of a shop, hotel or catering establishment let out under certain conditions. Shop means premises occupied wholly or mainly for the purposes of a retail or wholesale trade or business or for the purpose of rendering services for money or money’s worth.The tribunal would only have had jurisdiction if the premises was a shop, a hotel or a catering establishment. 80.The Court is alive to the fact that this being an interlocutory appeal, the Court will certainly restrain itself from making findings that would prejudice the hearing of the complaints if any that are pending determination before the Tribunal. I will therefore focus on the issue of jurisdiction of the tribunal over the reference that was filed before it. 81.Now, Kenya’s Superior Courts have settled the principle of law applicable to questions of jurisdiction of Courts and Tribunals. The Court of Appeal in the now “Classicus locus” case of:- “Owners of Motor Vessel “Lillian “S” – Versus - Caltex Oil (Kenya) Limited (Supra)” summed up the principle in the following words:“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A Court of law downs tools in respect of a matter before it the moment it holds the opinion that it is without jurisdiction.” 82.The Supreme Court of Kenya echoed this principle in the case of:- “Samuel Kamau Macharia & Another – Versus - Kenya Commercial Bank Limited & 2 others [2012] eKLR” in the following words:“(68)A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 83.The Appellants submitted that the Tribunal lacked jurisdiction because there was no subsisting Landlord – Tenant relationship existed at the time of filing. They argue that the respondent admitted in her own affidavit that she was denied access to the premises on 13th December, 2024, before filing her reference. This, they contend, shows that she was not in occupation and therefore no tenancy relationship subsisted. 84.Further, they submitted that the merely reliance on invoices and Mpesa payments was insufficient. They argued that the Respondent failed to discharge the burden of proof under the provision Sections 107–109 of the Evidence Act, Cap. 80 as she relied on an unpaid invoice and random Mpesa transactions without clear nexus to rent.Jurisdiction of the Tribunal is conditional upon a controlled tenancy. They relied on the case of:- “Pritam – Versus - Ratilal & Another (1972) EA 560”, where the court held that existence of a landlord–tenant relationship is a condition precedent to invoking the Tribunal’s jurisdiction. 85.According to the Appellants, once eviction occurs, jurisdiction ceases. They cited the case of:- “Michael Gachie Mwarangu – Versus - Peter Gichuru Maina & 2 Others [Supra]”, where the High Court held that once a tenant is evicted, the BPRT ceases to have jurisdiction; remedies thereafter lie in civil courts for trespass or breach of contract. 86.The Honourable Member Andrew Muma observed in his Ruling that:-23.It is not disputed that there is no tenancy agreement between the Applicant and the Respondent. However, this does not nullify the existence of tenancy relationship asSection 2 of Cap. 301 above recognizes the existence of controlled tenancy where the tenancy relationship was not reduced into writing.24.In Nyaboke & another – Versus - Ondieki [2024] eKLR the court in recognizing existence of tenancy relationship where there is no agreement stated as follows:“There is no problem where the tenancy is under a contract, whether oral or written.The landlord is known and the tenant is known. The rent is appreciated by the parties and so too the term.”25.The above ingredients must be met for there to be existence of a tenancy relationship. In this case, the CR - 12 has shown that the owner of the place where the business premises is located is the 2nd Respondent. The tenant in this case is the Applicant. There is also evidence of payment of rent to Lotfa Resort Diani in the Invoice dated 4th November 2024.26.This Tribunal thus finds that there is a tenancy relationship between the Applicant and the Respondents. The Tribunal thus has jurisdiction to hear and determine this matter as it follows under controlled tenancy. 87.The Respondent’s dispossession before filing suit meant that the Tribunal could not properly exercise jurisdiction to order recovery of possession in her favour.I therefore find that the BPRT had no jurisdiction to entertain the dispute. Its proceedings and decision are a nullity and must be set aside. I do hereby set them aside. The parties must proceed as if no dispute was ever determined by the tribunal.Jurisdiction under Cap. 301 is contingent upon a subsisting Landlord – Tenant relationship. Since the Respondent was already dispossessed at the time of filing, no such relationship existed. SUBDIVISION - ISSUE No. (c) Whether the Tribunal erred in granting interim “break – in” and possession orders. 88.Under this sub-title, the Honourable Court shall examine whether the Business Premises Rent Tribunal (BPRT) acted within its powers when it granted interim “break–in” and possession orders in favour of the respondent.The appellants submit that the Tribunal exceeded its jurisdiction by granting mandatory break–in orders. They relied on the provision Section 12(1)(e) of Cap. 301, which expressly empowers the Tribunal to order recovery of possession by the landlord. No corresponding power exists for tenants to recover possession once dispossessed. 89.They cited the case of:- “Re Hebtulla Properties Limited [Supra]”, where the court held that:-“The specific powers include the powers to make an order for the recovery of possession from a tenant, or indeed from any person in occupation. Such an order would be an order made on an application of the landlord. No corresponding power is given to make an order on the application of a tenant who has been forcibly dispossessed by a landlord.” 90.The Appellants further argue that the respondent admitted in her affidavit that she was denied access to the premises on 13th December, 2024, before filing her reference. This admission, they contend, shows that she was not in possession of the premises, and therefore the Tribunal could not lawfully restore possession through break–in orders. They relied on “Michael Gachie Mwarangu – Versus -Peter Gichuru Maina & 2 Others [Supra]”, where the High Court held that once a tenant is evicted, the BPRT ceases to have jurisdiction; remedies thereafter lie in civil courts for trespass or breach of contract. 91.The Respondent sought interim relief to regain possession of apartments numbers 401 – 404 at Lotfa Resort Diani Limited. The Tribunal granted break–in orders directing the OCS to enforce entry.However, the Respondent had already admitted dispossession before filing suit. This undermines the existence of a subsisting tenancy.In line with the case of:- “Re Hebtulla Properties Ltd (Supra)”, the Tribunal lacked statutory authority to grant possession orders to a tenant. The Tribunal’s orders amounted to mandatory injunctions at an interlocutory stage, which courts have consistently cautioned against unless exceptional circumstances are demonstrated. 92.The Honourable Court finds that the Tribunal erred in granting interim “break–in” and possession orders. Such orders are not contemplated under the provision of Section 12 of Cap. 301 when sought by a tenant, and the Respondent’s own admission of dispossession further deprived the Tribunal of jurisdiction. Therefore, the Tribunal acted ultra vires and its orders cannot stand. ISSUE No. (d) What orders should issue 93.Under this sub-title, the Honourable Court shall examine the appropriate reliefs and orders to be granted in light of the findings on the three preceding issues: (a) existence of a landlord–tenant relationship, (b) jurisdiction of the Tribunal, and (c) propriety of the interim break–in and possession orders. 94.The Court is guided by the provision of Section 78 of the Civil Procedure Act, Cap. 21 which empowers an appellate court to: determine a case finally; remand a case; frame issues and refer them for trial; take additional evidence or require such evidence to be taken; and make any order which ought to have been made, and to pass such decree or order as the case may require. 95.Thus, this Court’s appellate jurisdiction is not merely confined to setting aside the lower tribunal’s decision but may substitute it with appropriate orders to meet the ends of justice. 96.Be that as it may on the tenancy, this Honourable Court finds that the Respondent’s dispossession prior to filing suit undermines the existence of a subsisting landlord–tenant relationship. Without occupation, the statutory definition of controlled tenancy under the provision of Section 2 of Cap. 301 is not satisfied. 97.Further the Court notes that the Tribunal lacked jurisdiction to entertain the matter once the landlord–tenant relationship had ceased. In line with “Owners of Motor Vessel Lillian S (Supra)”, proceedings conducted without jurisdiction are null and void. 98.On the break in orders, the Tribunal acted ultra vires in granting mandatory break–in orders to a tenant. As clarified in the case of:- “Re Hebtulla Properties Limited [Supra]”, recovery of possession is a landlord’s remedy, not a tenant’s. Therefore, the Tribunal exceeded its statutory powers. ISSUE No. e). Who will bear the costs of the Appeal? 99.Under this sub-title, the Honourable Court shall examine the question of costs, which is a necessary consequence of the determination of the appeal.The issue of Costs is at the discretion of Courts. Costs mean the award that a party is granted at the conclusion of any process, legal action or proceeding in any litigation. The Proviso of the provision of Section 27 (1) of the Civil procedure Act, Cap. 21 provides that Costs follow the event whereby by events it means the result of the said process, legal action or proceedings. Section 27(1) provides:“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 100.The general principle is therefore that costs follow the event, meaning the successful party is entitled to costs unless the court finds good reason to depart from that rule. 101.In the case of:- “Republic – Versus - Minister for Agriculture ex - parte W’Njuguna [2006] eKLR”, the High Court emphasized that costs are awarded to compensate the successful party for the expense incurred in litigation.Further in the case of:- “Supermarine Handling Services Limited – Versus - Kenya Revenue Authority [2010] eKLR”, the Court of Appeal reiterated that costs follow the event unless there are special circumstances to deny them. 102.In the present appeal, the 1st and 2nd Appellants have succeeded in their appeal. The Tribunal’s ruling has been set aside to wit that, the Respondent’s reference and application have been struck out for want of jurisdiction. No exceptional circumstances have been demonstrated to justify depriving the successful Appellants of their entitlement to costs. 103.Hence, the Honourable Court finds that the costs of this appeal shall be borne by the Respondent which is consistent with the provision of Section 27 of the Civil Procedure Act, Cap. 21 and the principle that costs follow the event. V. Conclusion and Disposition. 104.Ultimately, in view of the foregoing detailed and reasoned analysis of the four issues framed for determination in this appeal – namely(a)whether a landlord–tenant relationship existed between the parties,(b)whether the Business Premises Rent Tribunal had jurisdiction to entertain the dispute,(c)whether the Tribunal erred in granting interim “break–in” and possession orders, and(d)who should bear the costs of the appeal – together with the affidavits, documentary evidence filed by the parties, the applicable statutory framework under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, the Civil Procedure Act, and the guiding jurisprudence from the superior courts, the Honourable Court arrives at the following conclusions and issues the orders set out below:-a.That the appeal filed through a Memorandum of Appeal dated 10th February, 2024 and a 199 Pages Record of Appeal dated 28th May, 2025 be and are hereby found to have merit and is allowed with costs.b.That the Ruling delivered by Hon. Andrew Muma, on 7th February, 2025 in BPRT Case No. E287 of 2024 is hereby set aside, and the respondent’s reference and application before the Tribunal are struck out for want of jurisdiction.c.That the Honourable Court finds that the respondent’s dispossession prior to filing suit undermined the existence of a subsisting landlord–tenant relationship. The Tribunal erred in holding that tenancy subsisted when occupation was absent.d.That the Honourable Court finds that the Tribunal lacked jurisdiction to entertain the dispute, as jurisdiction under Cap 301 is contingent upon a controlled tenancy. Once eviction occurred, the Tribunal ceased to have jurisdiction, and the respondent’s remedy lay in the ordinary civil courts.e.That the Honourable Court finds that the Tribunal acted ultra vires in granting interim “break–in” and possession orders. Section 12(1)(e) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 empowers only landlords to recover possession, not tenants. The Tribunal therefore exceeded its statutory mandate.f.That the costs of this appeal shall be borne by the respondent, in line with the provision of Section 27 of the Civil Procedure Act, Cap. 21 and the principle that costs follow the event.It is so ordered accordingly JUDGEMENT DELIVERED THOUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 8TH DAY OF MAY .2026.………………………………………..HON. MR. JUSTICE L.L. NAIKUNIENVIRONMENT AND LAND COURTATKWALEJudgment delivered in the Presence of:-Mr. Daniel Disii, the Court Assistant.Mr. Mramba Advocate holding brief for Mr. Waziri Advocate for the Appellants.Mr. Billy Janji Advocate for the Respondent.