https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3965

Moyale Mall Limited & 2 others v Ali & 18 others (Environment and Land Appeal E012 of 2026) [2026] KEELC 3965 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 3965 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E012 of 2026 EK Wabwoto, J June 30, 2026 Between Moyale Mall Limited 1st Appellant Duran Hussein Mudore 2nd Appellant Hassan Ega Musa 3rd Appellant and Abdirisak Abshir Ali 1st Respondent Mohamed Ahmed Ali 2nd Respondent Said Mohamed Omar 3rd Respondent Rahmo Hassan Isak 4th Respondent Abdikadir Hassan Abdullahi 5th Respondent Abdirahman Mohamed Daqaue 6th Respondent Farhan Absdi Hussein 7th Respondent Dahabo Adow 8th Respondent Fadumo Moalin Aliow 9th Respondent Mohamed Mogolo Bare 10th Respondent Fadamo Abdille Sabriye 11th Respondent Amino Salah Ahmed 12th Respondent Abdiwali Osman Elmi 13th Respondent Sahro Haji Osman 14th Respondent Jamac Mohamed Moalin 15th Respondent Abdullahi Mohamed Jamac 16th Respondent Nur Nimo Mohamed 17th Respondent Abdulla Hassan Abdi 18th Respondent Mohammed Ahmed Osman 19th Respondent (Being an appeal from the Ruling and Orders of Hon. Patricia May (Member) delivered on 02/01/2026 in the Nairobi Business Premises and Rent Tribunal in BPRT Case No. E1107 of 2025) Judgment 1.This is an appeal against the Ruling of the Nairobi Business Premises and Rent Tribunal (Hon. Patricia May, Member) delivered on 2nd January 2026 in BPRT Case No. E1107 of 2025. By that Ruling, the Tribunal dismissed a preliminary objection dated 22nd October 2025 by which the appellants (the landlord and its directors) had challenged the Tribunal's jurisdiction to entertain the respondents' reference and application, and affirmed its jurisdiction over the dispute. 2.The 1st appellant, Moyale Mall Limited, is the registered proprietor (through the 2nd and 3rd appellants, its directors) of the premises known as L.R. No. 36/VII/315, Eastleigh, Nairobi, on which Moyale Mall stands. The respondents are nineteen (19) tenants occupying various business stalls within the Mall under written leases. For convenience, the parties are referred to in this judgment by the descriptions they bore before the Tribunal, that is, the appellants as “the landlord” and the respondents as “the tenants”, save where the context requires otherwise. Background to the appeal 3.By a reference and a notice of motion, both dated 29th September 2025 and filed under a certificate of urgency, the tenants moved the Tribunal seeking, in substance: a temporary injunction restraining the landlord from evicting, harassing or otherwise interfering with their quiet possession of their respective stalls; an order restraining the landlord from acting upon a purported notice dated 1st June 2025; and a declaration that the said notice of 1st June 2025 is unlawful, null and void. The tenants' case was that their leases were due to expire (variously on 31st January 2026 and 30th May 2026); that they had given written notice of their desire to renew on 8th September 2025; that the landlord had rejected renewal by a letter dated 16th September 2025 relying upon a notice of 1st June 2025 said to intimate intended “structural changes”; and that the said notice of 1st June 2025 was never served upon them and was a fabrication intended to defeat their contractual and statutory rights of renewal. 4.On 3rd October 2025, the Tribunal, having read the application under the certificate of urgency, issued ex parte interim orders. It granted a temporary injunction restraining the landlord, its agents and servants from interfering with the tenants' quiet possession of the suit premises pending the inter partes hearing; restrained the landlord from acting upon or giving effect to the notice dated 1st June 2025; and directed the Officer Commanding Station, Eastleigh North Police Station, to ensure compliance. Those interim orders were thereafter extended on successive mention dates. 5.In response, the landlord filed a replying affidavit and a notice of preliminary objection, both dated 22nd October 2025. The preliminary objection raised two grounds of law: first, that the application as instituted was fatally incompetent and incurably defective; and second, that the Tribunal lacked jurisdiction to hear and determine the complaint, application or reference under section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, because the tenancy agreements between the parties were for a period of ten (10) years and were devoid of a termination clause, and were therefore uncontrolled tenancies falling outside the Act. 6.The Tribunal directed that the preliminary objection be heard first and by way of written submissions. The landlord filed its submissions and list of authorities. The Ruling on the preliminary objection was delivered on 2nd January 2026 in the presence of counsel for the landlord and in the absence of the tenants. The impugned ruling 7.The learned Member correctly treated the preliminary objection as raising a point of law and reminded herself of the test in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. She identified the controlling question as whether the tenancies fell within the definition of a “controlled tenancy” under section 2 of Cap. 301, observing that, for a written tenancy, the Tribunal has jurisdiction where the lease does not exceed five years, or, where it exceeds five years, where it contains a provision for termination otherwise than for breach of covenant. 8.Upon perusing the leases, the Member found that most, if not all, of them exceed five years, but held that “all of them under clause 14(e) have termination clauses otherwise than for breach of the terms of the lease”, and additionally referred to paragraph E of the lease between the landlord and the tenant Farah Said Mohamud. She accordingly concluded that the tenancies fell within the meaning of section 2 of the Act and were controlled tenancies, that any action intended to alter the terms of the tenancies had to be done in accordance with Cap. 301, and that the preliminary objection therefore failed. The objection was dismissed, with costs in the cause. The appeal 9.Aggrieved by that Ruling, the landlord lodged the present appeal by an amended memorandum of appeal dated 4th March 2026. Shorn of repetition, the four grounds of appeal complain that the learned Member erred in law and fact in: (i) dismissing the preliminary objection and failing to appreciate that the Tribunal has jurisdiction only over controlled tenancies as defined under section 2 of Cap. 301; (ii) failing to uphold the objection notwithstanding that the leases were for ten years and devoid of termination clauses; (iii) wrongly assuming jurisdiction and granting a temporary injunction, thereby acting ultra vires and without statutory authority; and (iv) failing to evaluate and determine all the issues raised in the preliminary objection. The landlord prays that the appeal be allowed, the Ruling set aside, the preliminary objection allowed, and the tenants' reference and application dismissed with costs. 10.The tenants oppose the appeal through grounds of opposition dated 4th March 2026 and filed on 11th May 2026. In summary, they contend that the amended memorandum raises no arguable ground because the Tribunal correctly found that the tenancy is a controlled tenancy within section 2(1) of Cap. 301; that the objection did not raise a pure point of law but rather contested facts on the nature and duration of the tenancy which were yet to be proved; that the landlord's assertion that the leases lack termination clauses is misleading and, in any event, does not oust the Tribunal's jurisdiction to determine, as a preliminary issue, whether a tenancy is controlled; that the grant of a temporary injunction was lawful and within section 12(1) of Cap. 301 as a proper exercise of discretion to preserve the status quo; that the appeal is frivolous, vexatious and an abuse of process; and that the landlord cannot use a long-term lease as a shield to defeat the statutory protection of Cap. 301. Submission 11.The appeal was canvassed by way of written submissions. The landlord, in its submissions dated 25th May 2026, framed three issues: whether the Tribunal possesses jurisdiction over a written lease exceeding five years that lacks a unilateral termination clause; whether the Tribunal has jurisdiction to issue injunctive orders; and costs. 12.On the first issue, the landlord submitted that jurisdiction flows strictly from statute and cannot be enlarged by interpretation, relying on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, Re Hebtulla Properties Ltd [1979] KLR 96, Pritam v Ratilal & Another [1972] EA 560 and Republic v Chairman, Business Premises Rent Tribunal at Nairobi; Wanyonyi (Interested Party); Obwari Enterprises Limited (Ex parte) [2025] KEELC 5684 (KLR). It contended that the leases are explicitly for a fixed term of ten years (running variously from 01/02/2016 to 31/01/2026 and from 01/06/2016 to 30/05/2026) and are devoid of any provision for early termination, and are therefore ordinary commercial leases governed by the Land Act, 2012, and not by Cap. 301. 13.Significantly, the landlord further submitted that the learned Member misdirected herself in treating clause 14(e) as a termination clause when, on its terms, that clause is merely an option for renewal that is conditional, structurally distinct from a statutory termination mechanism, and which does not grant an automatic right to a new lease. As to paragraph E of the lease the only provision in the record that, on its face, permits termination by either party on one calendar month's notice the landlord submitted that the said clause was “explicitly struck out, cancelled, and counter-signed using the stamp of the drawing Advocates before execution”, with the consequence that, a cancelled clause being non-existent, the leases contain no window for termination prior to expiry of the ten-year term save for breach of covenant. On that footing the landlord urged that the tenancies are uncontrolled, relying on National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] KECA 362 (KLR) for the proposition that a court cannot rewrite the parties' contract, on Ogembo v Eco Sea Products Limited [2024] KEELC 14034 (KLR) for the proposition that a party who chooses a lifespan placing the lease outside Cap. 301 cannot later contend that the tenancy is controlled, and on Kwanza Estates Limited v Jomo Kenyatta University of Agriculture and Technology (Petition E001 of 2024) [2024] KESC 74 (KLR) for the principle that neither party may impose the tenancy upon the other. 14.On the second issue, the landlord submitted that the Tribunal, being a creature of statute established under section 11 of Cap. 301, possesses only the powers enumerated in section 12(1)(a) to (n), which do not include the power to grant injunctions; that on the maxim expressio unius est exclusio alterius the express enumeration of specific remedies excludes injunctive relief; and that the grant of a temporary injunction on 3rd October 2025 was accordingly made in excess of jurisdiction and is void ab initio. It relied on Re Hebtulla Properties Ltd (supra), Narshidas & Company Limited v Nyali Air Conditioning and Refrigeration Services Limited [1996] eKLR, Republic v Nairobi Business Premises Rent Tribunal & Others, ex parte Karasha [1979] KLR 47, Ali Abdala Sheikh Omar & Another v Haji Sharif Mombasa (Civil Appeal No. 151 of 2019) [2022] KECA 600 (KLR) and Ogembo v Eco Sea Products Limited (supra). On costs, the landlord invoked section 27(1) of the Civil Procedure Act and prayed that costs of the appeal and of the proceedings before the Tribunal be borne by the tenants. 15.For their part, the tenants opposed the appeal both by their grounds of opposition and by detailed written submissions dated 9th June 2026, filed in response to the landlord’s submissions of 25th May 2026 and in opposition to the appeal. They framed four issues for determination: whether the subject leases constitute controlled tenancies within section 2(1) of Cap. 301; whether the Business Premises Rent Tribunal is vested with jurisdiction to issue injunctive orders in appropriate circumstances; whether the Tribunal erred in dismissing the preliminary objection; and who should bear the costs of the appeal. 16.On the first issue, the tenants did not dispute the principle, established by the Lillian S (supra), that jurisdiction is everything, but contended that the landlord misapplies it. The true question, they submitted, is whether, upon a correct and purposive construction of section 2(1), the leases fall within the definition of a controlled tenancy. Cap. 301 must be construed with regard to the mischief it was enacted to remedy, being, as its long title declares, an Act to make provision for the protection of tenants of such premises from eviction and from exploitation; and an interpretation that strips long-standing tenants of statutory protection merely because their leases nominally exceed five years would, they argued, subvert that legislative purpose. 17.The tenants submitted that section 2(1) does not confine the notion of a “provision for termination” to a clause permitting early termination by notice, but embraces any contractual mechanism by which the tenancy may, within five years of commencement, come to an end and be reconstituted, replaced or transformed. Clause 14(e), they argued, is precisely such a mechanism: it creates a break-point at the end of the first term, well within five years of commencement for the leases running from 2016, at which the original lease determines and, if the option is exercised, a fresh tenancy upon renegotiated terms commences. On that reading, the clause introduces a point of commercial transition, a determination of the original tenancy within the life of the original lease, and the learned Member was right to rely upon it. The tenants added that the landlord’s own conduct confirms this construction, the dispute having been triggered by the tenants’ exercise of the clause 14(e) renewal mechanism in September 2025 and the landlord’s refusal of renewal. 18.As to paragraph E, the tenants acknowledged that a struck-out clause does not form part of the executed agreement, but submitted that the very excision of that clause demonstrates that the parties were alive to the distinction between a notice-termination clause and the renewal option in clause 14(e), and that the Ruling did not rest exclusively or even primarily upon paragraph E. They further submitted that the landlord’s reliance on Kwanza Estates (supra) cuts both ways, the Supreme Court having observed in the same passage that the converse is equally true, namely that a landlord cannot impose or force itself upon a tenant; and that the landlord’s attempt to eject long-standing tenants without affording them the protections of the Act is itself the kind of unilateral imposition the Act was designed to prevent. 19.A preliminary objection, the tenants submitted, can succeed only upon a pure point of law which, if sustained, disposes of the matter without the investigation of any fact (Mukisa Biscuits (supra) and Oraro v Mbaja [2005] KEHC 3182 (KLR)); whereas the landlord’s objection required the Tribunal to make factual findings on the content and proper construction of the leases, specifically whether they contained or lacked valid termination provisions, which is a matter for evidence. They adopted four propositions in support of the contention that the tenancies are controlled: that the premises are shop premises, which is not in dispute; that the tenants are individual traders and small business owners of the very class the Act was designed to protect, relying on Direct Line Assurance Co. Ltd v Peter Micheni Muguo [2018] KEHC 3010 (KLR) for the proposition that those occupying weak and vulnerable positions, even in commercial transactions, are entitled to protection against exploitation under the equality and equity values enshrined in Article 10 of the Constitution; that, on a proper construction, clause 14(e) introduces a mechanism by which the tenancy may come to an end within its life, bringing the leases within section 2(1)(b); and that any ambiguity in the leases must be resolved in the tenants’ favour under the contra proferentem rule and the broader purposive approach, relying on Rehema Koriomart Investment Limited v Kenidia Assurance Company Limited & another (Civil Suit E024 of 2024) [2026] KEHC 7280 (KLR). 20.On the second issue, the tenants submitted that the question of the Tribunal’s power to grant injunctions is premature and academic unless and until the Court finds in the landlord’s favour on the primary jurisdictional question; and that if the Tribunal’s finding on controlled-tenancy status is upheld, the validity of the orders does not arise in the same way, the Tribunal having acted within jurisdiction throughout. They submitted that section 12 confers wide powers and that a power to preserve the status quo pending the determination of a reference is a necessary incident of, and ancillary to, the Tribunal’s express statutory powers. While acknowledging that Narshidas (supra) and Ali Abdala Sheikh Omar (supra) hold that the Tribunal cannot grant injunctions, they urged that that line of authority is confined to permanent or substantive injunctions, whereas the orders of 3rd October 2025 were interim protective orders issued urgently to preserve the subject matter of the reference, namely the tenants’ continued occupation, pending a proper hearing; and that to deny the Tribunal any power to make a protective order would render the protective purpose of the Act nugatory, since a landlord could simply evict during the pendency of a reference. In the alternative, they submitted that if any of the orders were irregular, the proper course is to set aside only those orders and remit the reference for hearing on the merits, rather than to strike it out. 21.On the third issue, the tenants submitted that the Tribunal correctly identified that the controlled-tenancy question required a factual enquiry, correctly found clause 14(e) to be a material provision potentially bringing the leases within the Act, and acted in accordance with the protective purpose of Cap. 301; and that an appellate court will not lightly interfere with a tribunal’s exercise of discretion on a jurisdictional question where it has correctly directed itself, relying on Mwangi & another v Wambugu (Civil Appeal 77 of 1982) [1984] KECA 13 (KLR). They characterised the appeal as an abuse of the process of the court, calculated to delay the reference and to wear down the tenants. On the fourth issue, they submitted that costs follow the event under section 27(1) of the Civil Procedure Act, and prayed that the appeal be dismissed with costs, both of the appeal and of the preliminary objection proceedings before the Tribunal. Analysis and determination 22.This being a first appeal, the Court is under a duty to re-evaluate the material that was before the Tribunal, subject it to a fresh and exhaustive scrutiny, and arrive at its own conclusions, while bearing in mind that it neither saw nor heard the parties (Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123; Peters v Sunday Post Ltd [1958] EA 424). Where, as here, the appeal arises from a ruling on a preliminary objection determined on a point of law and on limited facts, the Court is in as good a position as the Tribunal to reach its own view. 23.Having considered the record, the grounds of appeal, the rival submissions and the authorities cited, the issues that fall for determination are:(i)Whether the Tribunal erred in dismissing the preliminary objection, that is, whether the tenancies are controlled tenancies within section 2 of Cap. 301 such that the Tribunal had jurisdiction over the reference;(ii)Whether the Tribunal had jurisdiction to grant the temporary injunction issued on 3rd October 2025; and(iii)What orders, including as to costs, ought to issue. (i) Whether the tenancies are controlled tenancies and whether the preliminary objection ought to have succeeded 24.The jurisdiction of the Business Premises Rent Tribunal is confined to controlled tenancies. Section 2 of Cap. 301 defines a controlled tenancy, in relation to a shop, hotel or catering establishment, as a tenancy which has not been reduced into writing, or which has been reduced into writing and which is for a period not exceeding five years, or contains provision for termination, otherwise than for breach of covenant, within five years from the commencement thereof, or relates to premises of a specified class. It is common ground, and correctly so, that where the written lease exceeds five years it is a controlled tenancy only if it contains a provision for termination otherwise than for breach of covenant exercisable within five years of commencement. That the Tribunal is a creature of statute whose jurisdiction cannot be implied or enlarged is settled by Re Hebtulla Properties Ltd (supra) and the Lillian S (supra); jurisdiction must be confronted at the threshold. 25.Two points must be cleared at the outset. First, I agree with the landlord, and indeed with the candid concession in the grounds of opposition, that clause 14(e) of the leases is not a termination clause. On its plain terms that clause confers upon the lessee an option, on giving three months' notice and provided it is not in breach, to be offered a new lease for a further period at a rent to be negotiated. It is a renewal provision; it neither shortens the term nor permits determination of the tenancy otherwise than for breach within five years of commencement. To the extent that the learned Member founded her finding of a controlled tenancy upon clause 14(e), she fell into error, and that part of her reasoning cannot stand. 26.I have not overlooked the tenants’ written submission that clause 14(e) is itself a provision for the determination of the tenancy within section 2(1)(b), on the footing that the clause creates a break-point at the end of the first term at which the original lease ends and, on exercise of the option, a fresh tenancy on renegotiated terms begins. That purposive construction is not without attraction, and I do not foreclose it. But whether clause 14(e) operates merely as an option to renew or, more ambitiously, as a mechanism that determines and reconstitutes the tenancy within five years of commencement is itself a contested question of construction upon which reasonable minds may differ. That a genuine interpretive contest of this kind exists is, if anything, a further reason why the controlled-tenancy question could not be disposed of summarily on a preliminary objection. For the purposes of this appeal it is sufficient to hold that clause 14(e), read on its own plain terms, is not the unilateral notice-termination clause the learned Member appears to have taken it to be, and that the firmer foundation for the Tribunal’s jurisdiction lies elsewhere, in paragraph E, to which I now turn. 27.Second, the provision that does, on its face, answer the statutory description is paragraph E of the recitals, which in the sample lease in the record provides that the lease period shall be deemed terminated on the expiry of the fixed term “or by giving one calendar month's notice by either party”. Such a clause is a provision for termination otherwise than for breach, exercisable by either party and not confined to the end of the term; on its face it brings the tenancy within section 2 and renders it controlled. The learned Member was therefore entitled to rely, as she did, on paragraph E. 28.It is at precisely this point that the appeal encounters its principal difficulty. The landlord now contends that paragraph E was struck out, cancelled and counter-signed before execution, and that a cancelled clause is a nullity incapable of conferring jurisdiction. Whatever the eventual merit of that contention, it is a contention of fact. Whether paragraph E was struck out, in which of the nineteen leases, whether the deletion preceded or post-dated execution, whether it was duly counter-signed, and what legal effect (if any) the alteration has upon each lease, are all matters that cannot be resolved on the face of the pleadings. They require the production and examination of each original lease and, very possibly, evidence. Indeed, the sample lease reproduced in the record (the lease in respect of stall G2R) carries paragraph E intact and unstruck, which suggests that the leases may not be uniform in this respect. The factual premise of the objection is therefore not agreed; it is hotly contested. 29.A preliminary objection, as the locus classicus Mukisa Biscuits (supra) makes plain, consists of a pure point of law argued on the assumption that the facts pleaded by the other side are correct. It cannot be raised where any fact has to be ascertained, or where what is sought is the exercise of judicial discretion. An objection whose success depends upon establishing that a particular clause was struck out before execution a fact the tenants do not admit and which the face of at least one lease contradicts is the very antithesis of a pure point of law. On the assumption the Tribunal was bound to make, namely that the leases are as the tenants plead and as the unaltered specimen in the record reflects, the tenancies contain a termination clause within paragraph E and are controlled. The objection could not, on that assumption, dispose of the reference. 30.It follows that, although the learned Member's reasoning was imperfect in its reliance on clause 14(e), her ultimate conclusion that the preliminary objection failed and the reference should proceed was correct, and may be supported on the alternative and firmer ground that the jurisdictional question, turning as it does on disputed facts about the content and execution of the leases, was not capable of summary determination on a preliminary objection. The authorities the landlord marshals, including National Bank of Kenya v Pipeplastic (supra) and Ogembo v Eco Sea Products (supra), do not assist it at this stage: they establish that the Court will not rewrite a bargain and that a party is bound by the lifespan it has chosen, but they presuppose that the terms of the bargain here, whether paragraph E forms part of the executed leases have first been ascertained. That ascertainment has not occurred, and cannot occur on a preliminary objection. 31.I therefore find that the Tribunal did not err in declining to strike out the reference on the preliminary objection. The question whether the tenancies are controlled remains a live and properly justiciable issue, but it is one to be determined by the Tribunal on evidence, as a preliminary issue going to its own jurisdiction, before any consideration of the merits of the reference. Grounds 1, 2 and 4 of the appeal accordingly fail, subject only to the correction of the learned Member's characterisation of clause 14(e). (ii) Whether the Tribunal had jurisdiction to grant the temporary injunction 32.The third ground of appeal stands on an entirely different footing, and it has merit. The powers of the Tribunal are exhaustively enumerated in section 12(1) of Cap. 301. Those powers do not include, and have consistently been held not to include, the power to grant an injunction, whether temporary or mandatory. An injunction is an equitable remedy reserved to courts of competent jurisdiction. The position is settled by a consistent line of authority: Republic v Nairobi Business Premises Rent Tribunal & Others, ex parte Karasha (supra), Re Hebtulla Properties Ltd (supra), Narshidas & Company Limited v Nyali Air Conditioning and Refrigeration Services Limited (supra), and, most recently, the Court of Appeal in Ali Abdala Sheikh Omar & Another v Haji Sharif (supra). As Ogutu Mboya, J. observed in Ogembo v Eco Sea Products Limited (supra), the Business Premises Rent Tribunal is not conferred with the statutory jurisdiction to grant an order of injunction, and where a tribunal issues orders without jurisdiction the resultant orders are void and invalid. 33.The tenants' answer that the injunction was a lawful exercise of discretion under section 12(1) to preserve the status quo cannot be sustained. It conflates the Tribunal's subject-matter jurisdiction over a controlled tenancy with a power to grant a particular remedy. The two are distinct. Even on the assumption most favourable to the tenants, that the tenancies are controlled and the Tribunal is seized of the reference, it does not follow that the Tribunal may grant injunctive relief, for that remedy is simply not among the powers conferred by section 12(1). On the maxim expressio unius est exclusio alterius, the careful enumeration of the Tribunal's powers excludes a remedy not so enumerated. A statutory tribunal possesses no residual or inherent equitable jurisdiction from which such a power might be drawn. 34.Nor am I persuaded by the further submission, developed in the tenants’ written submissions, that the orders of 3rd October 2025 escape this principle because they were interim protective orders rather than permanent or substantive injunctions. The authorities that deny the Tribunal injunctive power draw no such distinction, and for good reason: an interim injunction is no less an injunction than a perpetual one, and the want of power goes to the very nature of the remedy and not merely to its duration. If the Tribunal has no power to grant an injunction, it has no power to grant an interim one. The allied submission, that a denial of any protective power would render the protective purpose of Cap. 301 nugatory, is met by the answer that the protection the tenants seek is available, but from a different forum: a tenant under threat of eviction pending the resolution of a tenancy dispute may seek interim relief from a court vested with equitable jurisdiction. I do, however, accept the tenants’ alternative submission that the irregularity of the injunctive orders does not warrant striking out the reference; the appropriate course, as appears below, is to set aside the offending orders alone and to permit the reference to take its proper course. 35.It follows that the ex parte orders of temporary injunction granted on 3rd October 2025, and their subsequent extensions, were issued without jurisdiction and are, on the authorities, nullities. To this extent the third ground of appeal succeeds. I should add, for completeness, that this conclusion does not leave the tenants without recourse: a tenant who requires interim protection against threatened eviction pending the determination of a dispute over a tenancy must seek that relief from a court clothed with equitable jurisdiction in the case of land and premises, this Court and not from the Tribunal. 36.For the avoidance of doubt, the success of the appeal on the injunction does not carry with it the striking out of the reference. The two questions are severable. The reference may competently proceed before the Tribunal if, and only if, the Tribunal first satisfies itself, on evidence, that the tenancies are controlled; but in no event may the Tribunal grant or sustain injunctive relief. If, upon inquiry, the Tribunal finds the tenancies to be uncontrolled, it will be divested of jurisdiction and must down its tools, leaving the parties to pursue their rights in the appropriate forum under the Land Act, 2012. (iii) Costs 37.Costs follow the event under section 27(1) of the Civil Procedure Act, but the award remains in the discretion of the Court. The success in this appeal has been divided: the landlord has failed in its attempt to have the reference struck out for want of subject-matter jurisdiction over the tenancy, but has succeeded in establishing that the interim injunction was granted without jurisdiction. The appeal also raised genuine and unsettled questions touching on the jurisdiction of a statutory tribunal, which it was in the public interest to clarify. In those circumstances, I am satisfied that the just order is that each party bears its own costs of the appeal, and that the costs in the Tribunal abide the outcome of the reference. Disposition 38.In the result, and for the reasons given above, the appeal partly succeeds. I make the following orders:i)The appeal is allowed in part.ii)The interim orders of temporary injunction issued by the Tribunal on 3rd October 2025, and all extensions thereof, are set aside as having been made without jurisdiction.iii)Save as aforesaid, the Ruling of the Tribunal delivered on 2nd January 2026 dismissing the preliminary objection dated 22nd October 2025 is upheld, and the finding that clause 14(e) of the leases constitutes a termination clause is set aside.iv)The reference is remitted to the Business Premises Rent Tribunal to determine, on evidence and as a preliminary issue, whether the tenancies between the parties are controlled tenancies within the meaning of section 2 of Cap. 301, and only if that question is answered in the affirmative to proceed to hear and determine the reference on its merits; provided that the Tribunal shall not grant or sustain any order of injunction.v)Each party shall bear its own costs of the appeal; the costs in the Tribunal shall abide the outcome of the reference.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JUNE 2026.E.K. WABWOTOJUDGE