https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4068

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELCA APPEAL NO. E006 OF 2025** **MARIAS PAKINE TENKEYA ............................................................................ APPELLANT** **VERSUS** **KEPHA NYAMONGO OENGA T/A OLIVE OR TWIST ............................ RESPONDENT** *(Being an appeal against the Ruling and Orders of Hon. B. Kagoni (Senior Principal Magistrate) delivered on the 10th of December, 2024, in Kajiado CMCC No. E42 of 2020)* **JUDGMENT** **Introduction** 1. This appeal stems from the landlord-tenant relationship formerly subsisting between the Appellant, Marias Pakine Tenkeya, and the Respondent, Kepha Nyamongo Oenga (trading as Olive or Twist). The instant appeal challenges the ruling delivered on the 10th of December, 2024, by Hon. B. Kagoni, Senior Principal Magistrate, in Kajiado Chief Magistrate’s Court Civil Case (CMCC) No. E42 of 2020. 2. The background leading to this appeal is that the Respondent, who was a tenant of the Appellant in respect of a business premises, instituted the primary suit in the lower court and contemporaneously obtained interim orders on the 1st of December, 2020. These orders, issued by Hon. B. Cheloti, SRM, restrained the Appellant from levying distress for rent or interfering with the Respondent's quiet possession of the property pending the inter partes hearing of an interim application filed alongside the main suit. 3. The Appellant contends that the said application was never heard, and the interim orders were never subsequently extended. It is further submitted that on the 16th of February, 2022, the trial court issued a fresh order explicitly authorizing the Appellant, in his capacity as the landlord, to levy distress for rent. Subsequently, the tenancy between the parties reportedly lapsed on the 30th of June, 2023, following which the Respondent was evicted from the premises on the 2nd of July, 2023. 4. Following the eviction, the Respondent moved the lower court vide a Notice of Motion application dated 13th July 2023, brought under a Certificate of Urgency. The application sought to cite the Appellant for contempt of the initial court orders issued on the 1st of December, 2020, and prayed for the Appellant to be committed to civil jail or fined for disobedience. 5. The lower court heard the application and delivered the impugned ruling on the 10th of December, 2024. In the said ruling, the learned Magistrate found the Appellant in contempt of the court orders of 1st December 2020 and directed the Appellant to appear before the court in person on the 21st of January, 2025, for mitigation and sentencing. 6. Aggrieved by this decision, the Appellant preferred the present appeal, primarily contesting the trial court's jurisdiction and its reliance on the orders of 1st December 2020, which the Appellant avers had lapsed and were superseded by subsequent court orders and the lawful termination of the tenancy agreement. 7. The appeal is anchored on the Memorandum of Appeal dated 28th January 2025. The Appellant contends that the impugned ruling was unfair and unjust on the following grounds: 8. It relied on lapsed interim orders of 1st December, 2020. 9. It failed to consider the subsequent valid order of 16th February, 2022 authorizing distress for rent. 10. It was determined by a court that lacked jurisdiction, as disputes relating to controlled tenancies fall under the exclusive jurisdiction of the Business Premises Rent Tribunal pursuant to Cap 301, Laws of Kenya. 11. It condemned the Appellant for contempt when the tenancy had already lapsed and the Respondent was no longer a tenant. 12. The appeal was canvassed by way of written submissions. Only the appellant complied. **Analysis of Submissions** 1. The Appellant filed submissions dated 13th November 2025, which advanced several grounds challenging the impugned ruling delivered by the trial court. 2. The Appellant submits that the trial court erred by basing its ruling on the interim orders of 1st December 2020, which had lapsed and were never extended. To buttress this argument, the Appellant relies on **Order 40 of the Civil Procedure Rules**, which provides that interim injunctions or orders automatically expire on the return date unless formally extended by the court. The Appellant further cited the case of ***Belle Maison Ltd v. Yaya Towers Ltd [1992] eKLR***, arguing that a lapsed order cannot constitute a valid foundation for judicial action, and any decision founded upon an order that has ceased to exist is a nullity in law. 3. The Appellant faults the trial court for failing to consider the subsequent court order dated 16th February 2022, which expressly authorized the Appellant to levy distress for rent. The Appellant asserts that in levying distress, he was lawfully exercising a statutory remedy sanctioned under **Section 26 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301**. Relying on ***Shah v. Mbogo [1967] EA 116***, the Appellant contends that judicial discretion must be exercised to advance justice and equity. It is submitted that by disregarding a valid and subsisting order, the trial court misapplied its discretion and occasioned a miscarriage of justice. 4. The Appellant raises a fundamental objection regarding the trial court's jurisdiction to entertain the dispute. It is submitted that the premises in question constituted a "controlled tenancy" as defined under **Section 2 of Cap 301**. The Appellant argues that pursuant to **Section 14 of Cap 301**, all disputes relating to rent, its recovery, or distress for rent in controlled premises fall under the exclusive jurisdiction of the Business Premises Rent Tribunal (BPRT), effectively ousting the jurisdiction of ordinary civil courts. To emphasize the sanctity of jurisdiction, the Appellant relies on the *locus classicus* of ***Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] KLR 1***, where the court held that jurisdiction is everything and without it, a court must down its tools. The Appellant also cited ***Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR*** to assert that a court cannot arrogate to itself jurisdiction where none exists. Consequently, the Appellant avers that the trial court's ruling was null and void *ab initio*. 5. The Appellant submits that the tenancy relationship came to a natural end on 30th June 2023, and the Respondent was lawfully evicted on 2nd July 2023. The Appellant contends that contempt jurisdiction presupposes an ongoing legal relationship and a subsisting order. Placing reliance on ***Econet Wireless Kenya Ltd v. Minister for Information & Communication of Kenya & Another [2005] eKLR***, the Appellant argues that the purpose of contempt proceedings is to protect the court's authority by ensuring compliance with valid orders, not to punish conduct undertaken pursuant to orders that have lapsed. Thus, the Appellant submits that sustaining the contempt proceedings without a valid legal or contractual substratum was legally untenable. 6. In urging this Court to allow the appeal, the Appellant relies on ***Kenya Breweries Ltd v. Godfrey Odoyo [2010] eKLR*** to assert that the appeal raises *bona fide* issues of law and fact with a real prospect of success. Finally, the Appellant invokes **Article 159(2)(a) of the Constitution of Kenya**, urging the Court to look beyond procedural technicalities, intervene to protect the ends of justice, and grant the prayers sought in the Memorandum of Appeal. **Issues for Determination** 1. Having carefully gone through the memorandum of appeal, the trial court proceedings and the submissions on record I have identified the issues for determination as follows: 2. ***Whether the trial court possessed the requisite jurisdiction to entertain and determine the dispute;*** 3. ***Whether the interim orders issued on 1st December 2020 had lapsed, and whether they could validly form the foundation for contempt proceedings****;* 4. ***Whether the trial court erred in law and fact by failing to consider the subsequent court order dated 16th February 2022 and the eventual lapse of the tenancy agreement****;* 5. ***Whether, in light of the foregoing, the Appellant was lawfully and properly cited for contempt of court; and*** 6. ***Whether the appeal has merit, and what final orders and reliefs ought to be granted by this Court****.* **Analysis and Determination** 1. I have carefully reconsidered and re-evaluated the entire evidentiary record placed before the lower court, the impugned ruling, the memorandum of appeal, and the rival submissions advanced by the parties. As a first appellate court, I am enjoined to subject the evidence on record to a fresh and exhaustive scrutiny, analyze it independently, and arrive at my own conclusion. ***I. Whether the trial court possessed the requisite jurisdiction to entertain and determine the dispute*** 1. The first and fundamental issue concerns the jurisdiction of the trial court. Jurisdiction is the cornerstone upon which judicial authority rests and must be determined at the earliest opportunity because, without it, any proceedings undertaken by a court are rendered nullity irrespective of the merits of the dispute. 2. It is not disputed that the relationship between the Appellant and the Respondent emanated from a commercial lease agreement. The nature of that tenancy brings it squarely within the statutory definition of a *controlled tenancy* under the applicable legislative framework. Consequently, disputes arising from such a tenancy, particularly those touching on the levy of distress for rent, eviction, termination of tenancy, or recovery of rent arrears, fall within the exclusive mandate of the specialized tribunal established under the statute. 3. In the present case, the trial magistrate assumed and exercised original jurisdiction over a dispute involving a controlled tenancy and subsequently entertained contempt proceedings arising therefrom. In doing so, the trial court unlawfully assumed a mandate that Parliament specifically entrusted to the Business Premises Rent Tribunal. Jurisdiction is neither a procedural technicality nor a matter capable of being conferred by acquiescence, waiver, estoppel, or consent of parties. A court either possesses jurisdiction by virtue of the Constitution or statute, or it does not. Where jurisdiction is absent, the court is obligated to immediately decline further engagement with the matter because any proceedings conducted, and any consequential orders issued, are void from inception. 4. This conclusion finds statutory support in Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 of the Laws of Kenya, which provides verbatim: *“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... (b) to permit the levy of distress for rent.”* 1. The centrality and inviolability of jurisdiction were emphasized by the Court of Appeal in the celebrated locus classicus of ***Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989] KLR 1,*** where the Court stated verbatim: ***“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 a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”*** 1. The same principle was reaffirmed by the Supreme Court of Kenya in ***Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR***, which held verbatim: ***“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.”*** 1. In light of the foregoing, I am satisfied that the trial court lacked the requisite jurisdiction to entertain the suit and all consequential proceedings arising therefrom. ### ***II. Whether the interim orders issued on 1st December 2020 had lapsed, and whether they could validly form the foundation for contempt proceedings*** 1. The next issue concerns the legal efficacy of the interim orders issued on 1st December 2020 and whether those orders remained capable of sustaining contempt proceedings several years later. 2. The record reveals that the trial court granted ex parte interim orders restraining the Appellant from levying distress for rent. Those orders were intended to preserve the status quo pending an inter partes hearing. However, it is evident from the proceedings that the anticipated inter partes hearing was never conducted and that no subsequent order was issued extending, renewing, or otherwise preserving the interim relief. 3. It is a settled principle of civil procedure that ex parte injunctions are temporary in nature and are not intended to subsist indefinitely. Such orders derive their force from strict statutory timelines and automatically lapse by operation of law upon expiry of the prescribed period unless expressly extended by the court on the return date. Their continued existence cannot be presumed, inferred, or implied. 4. The trial court nevertheless proceeded to cite the Appellant for contempt based on those interim orders notwithstanding the fact that they had long ceased to have legal effect. A party cannot be punished for violating an order that no longer exists in law. Once an interim order expires, it loses its coercive and binding force, and it cannot thereafter provide a legal basis for contempt proceedings. 5. This conclusion is supported by Order 40 Rule 4(1) of the Civil Procedure Rules, 2010, which provides verbatim: *“Where an application for an injunction is made ex parte, the court may... grant an injunction... but any such injunction shall not be granted for a period longer than fourteen days.”* 1. The legal consequences of lapse by effluxion of time were succinctly explained by the High Court in ***Belle Maison Ltd v. Yaya Towers Ltd [1992] eKLR***, where it was held verbatim: ***“An order which has lapsed by effluxion of time cannot be said to have been breached. There is no longer any order in existence capable of being disobeyed.”*** 1. Accordingly, I find that the interim orders issued on 1st December 2020 had expired by operation of law and were incapable of forming a lawful foundation for contempt proceedings instituted years later. ### **III. *Whether the trial court erred in law and fact by failing to consider the subsequent court order dated 16th February 2022*** 1. The error occasioned by reliance upon an expired order was compounded by the trial court’s failure to take into account its own subsequent ruling delivered on 16th February 2022. 2. The record unmistakably demonstrates that on that date the court issued a distinct and valid order expressly authorizing the Appellant, as landlord, to levy distress for rent. That order remained part of the court record and had neither been set aside nor varied. 3. In determining the contempt application, however, the trial magistrate entirely disregarded the existence and effect of the order of 16th February 2022. By ignoring a subsisting order that expressly sanctioned the conduct complained of, the trial court misdirected itself both on the facts and on the applicable law. 4. Judicial discretion must be exercised upon consideration of all relevant circumstances and in a manner that advances fairness and justice. A court cannot simultaneously authorize a litigant to undertake a particular act and thereafter punish that same litigant for carrying out the very conduct that was judicially sanctioned. Such an approach produces inconsistent outcomes, undermines certainty in judicial proceedings, and occasions substantial injustice. 5. I therefore find that the trial court failed to exercise its discretion judiciously by disregarding material evidence in the form of its own subsequent orders dated 16th February 2022. ### ***IV. Whether the Appellant was lawfully and properly cited for contempt of court in light of the lapsed tenancy*** 1. Contempt proceedings occupy a unique position in the administration of justice because they are quasi-criminal in character and carry potentially severe sanctions, including fines and imprisonment. For that reason, courts have consistently insisted upon strict compliance with the legal requirements governing contempt proceedings. 2. Before a party is found to be in contempt, it must be demonstrated to the requisite standard that there existed a valid and subsisting court order, that the alleged contemnor had knowledge of the order, and that the disobedience complained of was deliberate and willful. 3. In the present appeal, the factual matrix discloses that by the time the contempt application was filed in July 2023, the tenancy agreement had already lapsed on 30th June 2023 and the Respondent had been evicted. The landlord-tenant relationship that constituted the substratum of the dispute had therefore come to an end. 4. In those circumstances, and in the absence of any valid and subsisting restraining order, the finding that the Appellant was guilty of contempt cannot be sustained. Contempt jurisdiction exists to safeguard the authority and dignity of the court and to ensure obedience to lawful court orders. It is not intended to retrospectively punish conduct undertaken when the foundational order had ceased to exist and when the underlying relationship between the parties had already terminated. 5. The applicable principles were articulated in ***Econet Wireless Kenya Ltd v. Minister for Information & Communication of Kenya & Another [2005] eKLR,*** where the Court held verbatim: ***“It is essential for the maintenance of the Rule of Law and order that the authority and the dignity of our Courts are upheld at all times... However, before a party can be committed for contempt, it must be shown that the order was issued, that the party was aware of the order, and that the party deliberately disobeyed it.”*** 1. Applying those principles to the facts before me, I am not satisfied that the essential ingredients of contempt were established. ### ***V. Whether the appeal has merit, and what final orders and reliefs ought to be granted by this Court*** 1. Having considered the entire record, the applicable law, and the authorities cited, I am persuaded that the impugned ruling delivered on 10th December 2024 cannot be allowed to stand. 2. The trial court proceeded without jurisdiction, based its decision on orders that had already lapsed by operation of law, failed to consider a subsequent valid order authorizing the levy of distress, and overlooked the undisputed fact that the tenancy relationship had already terminated. These errors go to the root of the proceedings and render the impugned decision legally untenable. 3. The Appellant has demonstrated substantial and bona fide issues of both law and fact warranting appellate intervention. In the circumstances, this Court is duty-bound to set aside the impugned ruling and grant appropriate reliefs in order to achieve substantive justice. 4. The authority of this Court to conclusively determine the dispute is derived from Section 78(1) of the Civil Procedure Act, Cap 21, which provides verbatim: *“Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken.”* 1. In exercising those powers, this Court is further guided by the constitutional command contained in Article 159(2)(d) of the Constitution. 2. In the final analysis, this appeal succeeds in its entirety. Consequently, I make the following orders: 3. **THAT** the Appeal is hereby allowed. 4. **THAT** the Ruling and Orders of Hon. B. Kagoni, SPM, delivered on 10th December 2024 in Kajiado CMCC No. E42 of 2020, are hereby set aside in their entirety. 5. **THAT** Kajiado CMCC No. E42 of 2020 is hereby struck out for want of jurisdiction. 6. **THAT** the Appellant is awarded the costs of this Appeal and the costs of the Kajiado CMCC No. E42 of 2020. **It is so ordered.** **Dated, Signed and Delivered at Kajiado Virtually this 2nd Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Kansiime Gideon for the Appellant N/A by the Respondent Court Assistant: Alex **M.D. MWANGI** **JUDGE**