https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5152

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELCLMISC. NO. E334 OF 2025** **GODFREY WACHIRA MAINA** **T/A MONDOS ELECTRONIC..................................TENANT/APPLICANT** **-VERSUS-** **ROYAL PALMS MUSTARD LTD..............LANDLORD/1ST RESPONDENT** **ANTONY MUTAHI......................................................2ND RESPONDENT** **RULING** 1. The tenant/applicant filed the notice of motion dated 28th October, 2025 expressed to be brought under **Section 5** of the **Judicature Act** and **Rules 81.4** and **81.10** of **Part 81** of the **Civil Procedure (Amendment no. 2) Rule 2012 of England and Wales** and **Section 24** of the **Interpretation and General Provisions Act**, seeking the following orders:- 2. ***Spent.*** 3. ***Spent.*** 4. ***That this honourable court be pleased to grant to the applicants leave to apply for an order for committal to jail of the respondents.*** 5. ***That if prayer no.3 is granted, the proposed application be deemed to have been filed.*** 6. ***That this honourable court be pleased to dispense with the eight days' notice under Order 52 Rule 3 and order that the said application for committal be heard immediately.*** 7. ***That this honourable court be pleased to declare and hold that having been served/having been aware of the orders made by Nairobi Business Premises Tribunal on 29th September 2025, in Business Premises Tribunal Case Number E1068 of 2025, Nairobi, Godfrey Wachira Maina T/A Mondos Electronic versus Royal Palmas Mustard Limited, the respondents herein, have disobeyed those orders and hence in civil contempt of court.*** 8. ***That the directors/managers/agents of Royal Palms Mustard Limited be committed to civil jail for a period of 6 months or any other period or any other sanction as this honorable court may deem fit and appropriate.*** 9. ***That the costs of this application be provided for.*** 10. The application is premised on the grounds *inter alia* that the applicant is a tenant of the 1st respondent carrying on his business on LR No. 209/1821. The application is supported by the verifying affidavit (sic) of the tenant/applicant sworn on even date. He deposed that he took over tenancy of shop no. BG 60 at royal palms mall on 10th October 2023, where he established an electronics shop after purchasing the shop space from one Abdirizak Sahal Abdullahi for the sum of Kshs.4,100,000/-. In a turn of events, the 1st respondent without written notice or legal justification, demanded a sum of Kshs.4,000,000/- as “goodwill” and unlawfully locked his business premises for non-payment of the said sum. 11. The tenant/applicant explained that the said transaction involved the purchase of an empty shop space without stock, representing what is commonly referred to in business as “goodwill.” That at all material times, the 1st respondent was aware of and privy to the said agreement between himself and Mr. Abdullahi, and managed the premises at the time. Pursuant to the said agreement, the tenant/applicant was to continue paying monthly rent of Kshs.150,000/= which he deposed that he paid faithfully up to June 2024. 12. However, in July 2024, the 1st respondent through its agents verbally informed the tenant/applicant that rent would be increased to Kshs.170,000/= starting August 2024, and on 9th July, 2024 he paid Kshs.170.000/= as monthly rent to the 1st respondent and continued paying monthly rent of Kshs.170,000/= from July 2024 to June 2025, whereby he was verbally informed by the 1st respondent that the rent would again increase to Kshs.200,000/= from July 2025. 13. As advised by his advocates on record, the tenant/applicant deposed that under **Section 4** of the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301**, any increment of rent or alteration to tenancy terms requires at least two months' written notice, which the respondent has never issued. That all changes were arbitrary and communicated verbally by the respondents’ agents and caretakers. In addition to the rent increase, in June 2025 the 1st respondent through its agents verbally directed the tenant/applicant to pay “goodwill” of Kshs.4,000,000/=, contrary to law and without written notice. 14. The tenant/applicant deposed that on 9th June, 2025 the 1st respondent/landlord took a further step and locked the shop on account of non-payment. Consequently, on 10th June, 2025 he paid Kshs.900,000/= in two instalments of Kshs.500,000/= and Kshs.400,000/=. Further, on 18th September, 2025 the 1st respondent/landlord verbally threatened to close the applicant’s shop on 28th September, 2025 if he failed to pay the balance of Kshs.3,100,000/= as goodwill. The tenant/ applicant deposed that he does not have the said Kshs.3,100,000/= and that such a payment is not supported by any law or valid business practice. He further deposed that on 29th September, 2025 this court issued an order restraining the respondents from interfering with the tenancy. 15. Shortly after issuance of the order, the respondents brought in a group of armed goons to the premises with instructions to subdue them. During the invasion, he was physically assaulted, and their shop items were thrown outside the premises. He deposed that the respondents have greatly undermined the rule of law and authority of this court, which is punishable with imprisonment. 16. In response thereto, the 2nd respondent filed his replying affidavit sworn 4th February 2026, as the director of the 1st respondent/landlord. He termed the instant application as an abuse of the court process and does not merit the reliefs sought for reason of misrepresentation and non-disclosure of material facts, with intent to mislead this court into granting favourable orders. He denied any contempt whatsoever of the tribunal’s order as the tenant/applicant is currently in possession of the shopand has not been evicted in any way whatsoever and that no such attempt has been made. 17. The 2nd respondent deposed that the 1st respondent/landlord had previously leased the suit premises, to the tenant/applicant on the terms and conditions agreed between the parties. That it was a material term of the lease agreement that the tenant/applicant shall make payment of goodwill in the sum of Kshs.4,000,000/=, which terms were clearly and unequivocally accepted and fully binding on him. That despite the existence of the clear terms of the lease agreement between the parties, the tenant/applicant breached his payment obligation by making part payment in the sum of Kshs.900,000/= and thereby deliberately neglected, failed and/or refused to settle the balance thereof in the sum of Kshs.3,100,000/=. 18. Pursuant to negotiations between the parties, wherein the tenant/applicant indicated that he is not willing to remedy the breach of his obligations under the tenancy by paying the requisite goodwill, it was agreed between the parties that the landlord/1st respondent shall refund the part-payment of goodwill in the sum of Kshs.900,000/=, and the tenant/applicant shall voluntarily vacate the premises on or before 1st October, 2025. In further compliance with the terms of the agreement between the parties, on 1st October 2025, the tenant/applicant willfully and voluntarily vacated the premises and took away all his goods therein. However, on 4th October, 2025 with the assistance of hired goons, the tenant/applicant unlawfully and illegally forcefully broke into the premises and took possession thereof, without justification. 19. The tenant/applicant filed a further affidavit sworn on 23rd April, 2026. He reiterated that the respondents committed acts of contempt twice despite knowledge of the court orders dated 29th day September, 2025. The application was canvassed by way of written submissions. The tenant/ pplicant filed his written submissions dated 27th April, 2026. On 8th July, 2026 the respondents filed their written submissions dated 13th May, 2026. I have considered the application, the replies thereof and the written submissions. The issue for determination is *whether the respondents are in contempt of the orders of the business premises rent tribunal.* 20. The issue at hand raised by the tenant/applicant is that the 1st respondent, in defiance of the order given by the business premises rent tribunal in BPRT 1068 of 2025 on 29th September 2025, attempted to evict him from the suit premises known as shop no. BG60 erected on L.R. No. 209/1829 in Nairobi. The said order by the tribunal expressly ordered the 1st respondent to open the shop and restrained it from locking or denying access to the tenant’s shop or interfering with his quiet possession. The tenant/ applicant contends that the respondents are in contempt of court orders and ought to be committed to civil jail. 21. **Section 5(1)** of the **Judicature Act** provides as follows:- ***“The High Court and Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England and such power shall extend to upholding the authority and dignity of subordinate courts.”*** 1. From the above, the law is clear that this court has jurisdiction to punish for contempt of court orders where it has been established. In this case, the tenant/ applicant has annexed photographs to his affidavit showing goods haphazardly laid out on the street, outside the shop as proof of the said contempt. He relied on the holding of Mativo, J (as he then was) in the case of **North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi [2016] KEHC 7193 (KLR)** stated thus:- ***“Writing on proving the elements of civil contempt, learned authors of the book Contempt in Modern New Zealand have authoritatively stated as follows:-*** ***"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-*** * 1. ***the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;*** 2. ***the defendant had knowledge of or proper notice of the terms of the order;*** 3. ***the defendant has acted in breach of the terms of the order; and*** 4. ***the defendant's conduct was deliberate.*** ***Although the proceedings are civil in nature, it is well established that an applicant must prove the elements beyond reasonable doubt, at least higher than the standard in civil cases, the fact that the liberty of the defendant could be affected means that the standard of prove is higher than the standard in civil cases. It is incumbent on the applicant to prove that the defendant's conduct was deliberate in the sense that he or she deliberately or willfully acted in a manner that breached the order.”*** 1. Thus, proof of knowledge of the orders of the court is a crucial element in punishing contempt of court. Since the landlord/1st respondent has replied through the 2nd respondent, it is evident that they had knowledge of the said court order but denied committing any contempt. There is however no other proof save for the photographs, which can be challenged, that such contempt occurred. In other words, and from the photographs, the court is unable to tell if indeed the respondents committed the act. Further, the respondents argued that the tenancy was terminated through an agreement for the landlord/1st respondent to refund the partial payment of goodwill of Kshs.900,000/= and the tenant/applicant agreeing to vacate the premises. The said agreement was not produced, but the refund was evidenced with instructions from royal tech marketing solutions ltd to their I & M Bank to revert payment of the said Kshs.900,000/=. The 1st respondent/landlord also wrote the letter dated 10th November 2025, informing the tenant/applicant to cease and desist paying rent. 2. However, the procedure for termination of tenancy is established under **Section 4(1)** and **(2)** of the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301**, which provides as follows:- ***“(1). 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.*** ***(2). 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.”*** 1. The court of appeal in the case of **Munaver N Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited [1995] KECA 166 (KLR)** emphasized this and stated that:- ***“The Act lays down clearly and in detail, the procedure for the termination of a controlled tenancy. Section 4(1) of the Act states in very clear language that a controlled tenancy shall not 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 specified provisions of the Act. These provisions include the giving of a notice in the prescribed form. The notice shall not take effect earlier than 2 months from the date of receipt thereof by the tenant. The notice must also specify the grounds on which termination is sought. The prescribed notice in Form A also requires the landlord to ask the tenant to notify him in writing whether or not the tenant agrees to comply with the notice.”*** 1. In this case, no such notice for termination of tenancy has been given nor produced by the parties herein, therefore the respondents contention that the tenancy was terminated is unfounded. Since there is still a dispute on whether there is a subsisting tenancy or not, the court refers parties back to the tribunal for determination of this matter. 2. From the above, the court is unable to conclusively find that the orders of the business premises rent tribunal were disobeyed due to lack of sufficient evidence. The notice of motion dated 28th October, 2025 lacks merit, and it is hereby dismissed with no order as to costs. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 4TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **04/08/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Mr. Gisemba for the Respondent*