https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4569

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELCLA NO. E095 OF 2024 BETWEEN** **MICHAEL MUCHIRI...........................................................................APPELLANT** **-VERSUS-** **BILLY NGUGI CIERA.......................................................................RESPONDENT** **JUDGEMENT** **Background of the Appeal** 1. This Appeal arises from the Ruling delivered on 28th June 2024 by Hon. Cyprian Mugambi Nguthari (Chairperson) in Business Premises Rent Tribunal Case No. BPRT/E373 of 2024, wherein the Tribunal determined the Respondent/Tenant's interlocutory application against the Appellant/Landlord. In the impugned Ruling, the Tribunal issued an order restraining the Appellant, whether by himself or through his agents, from evicting the Respondent or attaching the Respondent's property pending the hearing and determination of the reference before the Tribunal. The Tribunal further directed that the costs of the application be borne by the Appellant. Aggrieved by the said Ruling and Orders, the Appellant lodged the present Appeal. 2. The Appeal is founded on a Memorandum of Appeal dated 10th July 2024, in which the Appellant challenges the Tribunal's exercise of discretion on both factual and legal grounds. In particular, the Appellant contends that the Tribunal erred in failing to find that the Respondent had breached the terms of the tenancy agreement dated 5th September 2017, failed to appreciate the evidence demonstrating that the Respondent was in rent arrears amounting to Kshs. 271,300/-, and disregarded the Respondent's alleged admissions regarding both the tenancy relationship and the outstanding rent. The Appellant further faults the Tribunal for failing to find that he had established a prima facie case warranting the reliefs sought and for granting injunctive orders at an interlocutory stage, which, according to him, effectively determined the parties' rights before the substantive dispute could be heard. 3. Consequently, the Appellant prays that this Court allows the Appeal, sets aside the Ruling and Orders of the Business Premises Rent Tribunal delivered on 28th June 2024, and awards him the costs of the Appeal. **Submissions** 1. The Court’s directions were that the appeal be canvassed by way of written submissions **The Appellant's Submissions** 1. Counsel for the Appellant identified four issues for determination, namely: **whether the orders of the Business Premises Rent Tribunal should be set aside; whether the Respondent was in rent arrears and, if so, the amount outstanding; whether the Appellant was entitled to vacant possession of the suit premises and whether the doctrine of equitable estoppel was applicable; and who should bear the costs of the appeal.** 2. Counsel submitted that this being a first appeal, this Court is under a duty to re-evaluate the evidence and arrive at its own independent conclusions. In support of that proposition, reliance was placed on **Peters -Vs- Sunday Post Limited [1958] E.A 424**, **SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1 E.A 123**, **Gitobu Imanyara & 2 Others Vs- Attorney General [2016] eKLR**, and **Njoroge -Vs- Gakere & another (Civil Appeal E028 of 2024) [2025] KEHC 4048**. 3. On the merits of the appeal, Counsel submitted that the Tribunal erred in granting injunctive orders at an interlocutory stage, thereby restraining the Appellant from evicting the Respondent and attaching his property notwithstanding the Respondent's admitted rent arrears. It was argued that the Respondent had acknowledged, through a Memorandum of Understanding dated 5th September 2017, liability for rent arrears amounting to Kshs. 271,300/=, but had failed to honour that undertaking. Counsel further maintained that the Tribunal disregarded the Respondent's admissions regarding both the tenancy relationship and the outstanding rent, with the result that the Appellant suffered continuing prejudice through loss of rent and was wrongly denied the remedies available to a landlord upon breach of the tenancy agreement. 4. On the issue of equitable estoppel, Counsel contended that the Respondent was bound by the representations contained in the Memorandum of Understanding and could not resile from his promise to settle the admitted rent arrears. In advancing that argument, reliance was placed on **Benjamin Airo Shiraku - Vs - Fauzia Mohammed HCC 272 of 2011**, citing **Lord Denning** in **Coube - Vs - Coube [1951] 2 KB 215**, as well as **Kenya Commercial Finance Co. Ltd -Vs- Ngeny & Another (2002) 1 KLR**. 5. On costs, Counsel submitted that costs follow the event pursuant to **Section 27 of the Civil Procedure Act**, and relied on **Party of Independent Candidate of Kenya & another -Vs- Mutula Kilonzo & 2 others [2013] eKLR** and **Cecilia Karuru Ngayu -Vs- Barclays Bank of Kenya & another [2016] eKLR** in urging the Court to allow the appeal, set aside the Tribunal's orders, award the Appellant vacant possession of the premises, judgment for **Kshs. 271,300/=**, and the costs of both the appeal and the proceedings below. **The Respondent's Submissions** 1. In opposition to the appeal, Counsel for the Respondent filed written submissions dated 27th March 2025, identifying the following issues for determination: *whether the Tribunal erred in law and fact in restraining the Appellant from evicting the Respondent and attaching his property; whether the Respondent was in rent arrears; and whether the appeal is merited.* 2. Counsel submitted that the Tribunal correctly applied the provisions of the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301**, in granting the injunctive orders, arguing that the Appellant had failed to issue the prescribed statutory notice before attempting to evict the Respondent or levy distress for rent. It was further submitted that the Tribunal properly intervened to safeguard the Respondent's rights under the Act. In support of these submissions, reliance was placed on **Lall -Vs- Jeypee Investments Ltd Nairobi HCCA No.120 of 1971 (1972) EA 512**, as cited in **Gikuya -Vs- Administrators of the Estate of Erastus Njugua Kama (Deceased) & another (Tribunal Case E108 of 2022) [2022] KEBPRT 681 (KLR)**. 3. On the issue of rent arrears, Counsel submitted that the Respondent had consistently paid rent in accordance with the parties' agreement and that the Memorandum of Understanding dated 5th September 2017 expressly provided that the value of the improvements undertaken by the Respondent on the premises would offset any outstanding rent arrears. Counsel therefore contended that the Appellant's claim for Kshs. 271,300/= was contrary to the parties' agreement and that the Tribunal rightly found no basis for permitting eviction or distress founded on the alleged arrears. 4. Counsel further submitted that the appeal was devoid of merit as the Tribunal’s decision was firmly anchored on the mandatory provisions of **Section 4(2)** and **Section 4(4)** of the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act**, which require a landlord to comply with the prescribed procedure before terminating a controlled tenancy or taking enforcement measures against a tenant. In support of that proposition, Counsel relied on **Manaver N. Alibhai T/A Diani Boutique -Vs- South Coast Fitness & Sports Centre Ltd, Civil Appeal No. 203 of 1994**, and urged the Court to uphold the Tribunal’s Ruling and dismiss the appeal with costs to the Respondent. **Issues for Determination** 1. I have considered the Memorandum of Appeal, the impugned Ruling, the Record of Appeal, the submissions by Counsel and the authorities cited. In my view, the appeal turns on the following issue:*Whether the learned Chairperson of the Business Premises Rent Tribunal erred in granting the interlocutory injunctive orders.* **Analysis and Determination** 1. Before considering the merits of the appeal, it is necessary to restate the principles governing the jurisdiction of this Court as a first appellate court. The duty of a first appellate court is not merely to determine whether the decision appealed from was correct, but to reconsider and re-evaluate the evidence that was placed before the trial court and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. In **Selle & Another -Vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the Court stated: *“... this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect."* The same principle was reiterated in **Peters -Vs- Sunday Post Ltd [1958] EA 424**, where the Court emphasized that although a first appellate court has jurisdiction to review the evidence, it ought to exercise that jurisdiction with caution and should not interfere merely because it would itself have reached a different conclusion. 2. It is equally important to appreciate that the present appeal is directed against the Tribunal's exercise of discretion in granting interlocutory relief. The law is settled that an appellate court will not lightly interfere with the exercise of judicial discretion unless it is demonstrated that the court below misdirected itself in law, took into account irrelevant considerations, failed to consider relevant matters, or that its decision is plainly wrong. In **Mbogo & Another v Shah [1968] EA 93**, the Court succinctly stated: *“An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion”* 3. Accordingly, the question before this Court is not whether it would have reached a different conclusion, but whether the Tribunal exercised its discretion judicially and in accordance with settled legal principles. 4. The Appellant contends that the Tribunal improperly exercised its discretion by granting injunctive orders notwithstanding the Respondent's admitted rent arrears of **Kshs. 271,300/=** and the existence of the **Memorandum of Understanding dated 5th September 2017**, which, according to the Appellant, constituted an unequivocal admission of indebtedness. The Appellant further argues that by restraining him from levying distress for rent or recovering possession of the premises, the Tribunal effectively granted final relief at an interlocutory stage and thereby denied him the remedies available under the tenancy agreement. 5. Conversely, the Respondent maintains that the impugned orders were properly issued to preserve the status quo, contending that the Appellant had sought to evict him and levy distress without complying with the mandatory provisions of the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301**. The Respondent further argues that any dispute regarding rent arrears and the effect of the Memorandum of Understanding is a matter reserved for determination at the substantive hearing before the Tribunal. These competing positions must therefore be examined against the applicable statutory framework and the principles governing interlocutory relief. 6. The tenancy giving rise to this dispute is a **controlled tenancy** within the meaning of the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301**. The Act prescribes a comprehensive statutory framework regulating the termination of controlled tenancies and prohibits landlords from resorting to self-help remedies outside that framework. **Section 4(2)** of the Act provides: *“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."* 7. Further, **Section 4(4)** stipulates that: *“No tenancy notice shall take effect until such date, not being less than two months after the receipt thereof by the receiving party, as shall be specified therein.”* The purpose of these provisions is to ensure that disputes relating to controlled tenancies are resolved through the statutory process rather than unilateral action by either party. 8. The Appellant's principal grievance is that the Tribunal granted what he describes as permanent orders at an interlocutory stage despite the Respondent's alleged admission that he owed rent arrears amounting to Kshs. 271,300/= under the Memorandum of Understanding dated 5th September 2017. 9. The Appellant further contends that the Tribunal failed to appreciate that the Respondent was in breach of the tenancy agreement and that, in the circumstances, the Appellant was entitled to recover possession of the premises and levy distress for rent. On the other hand, the Respondent maintains that the Appellant had not complied with the mandatory provisions of the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301**, before attempting to evict him or attach his property, and that the Tribunal correctly intervened to preserve the status quo pending the determination of the reference. 10. Having reconsidered the Record of Appeal and the rival submissions, I am not persuaded that the Appellant has established any basis upon which this Court ought to interfere with the Tribunal's exercise of discretion. The dispute before the Tribunal arose within the context of a controlled tenancy, whose termination and enforcement are regulated by the mandatory provisions of the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act**. As was observed in **Lall -Vs- Jeypee Investments Ltd Nairobi HCCA No.120 of 1971 (1972) EA 512**, the Act establishes a statutory code intended to protect tenants and its provisions must be complied with strictly. 11. Similarly, in **Manaver N. Alibhai T/A Diani Boutique -Vs- South Coast Fitness & Sports Centre Ltd, Civil Appeal No. 203 of 1994**, the Court emphasized that a controlled tenancy can only be terminated in accordance with the procedure prescribed under the Act, including the issuance of the prescribed statutory notice. Those authorities underscore the legislative intention that disputes relating to controlled tenancies be resolved through the statutory mechanism established under the Act rather than through unilateral action by either party. 12. While the Appellant has placed considerable reliance on the alleged rent arrears and the Memorandum of Understanding dated 5th September 2017, those matters constitute the very substance of the dispute pending before the Tribunal. Whether the Respondent is indeed indebted to the Appellant in the sum of Kshs. 271,300/=, whether the Memorandum of Understanding amounted to an unequivocal admission of liability, and whether the Respondent is entitled to rely on the alleged improvements carried out on the premises as a set-off are issues that require the evaluation of evidence at the hearing of the substantive reference. They were not matters capable of definitive determination at the interlocutory stage. 13. The purpose of an interlocutory injunction is not to determine the rights of the parties with finality but to preserve the subject matter of the dispute pending its determination. The orders granted by the Tribunal merely restrained the Appellant from evicting the Respondent or attaching his property pending the hearing and determination of the reference. They neither extinguished the Appellant's claim for rent arrears nor finally determined the parties' respective rights under the tenancy agreement. Should the Tribunal ultimately find that the Respondent is indeed in breach of the tenancy or liable for the alleged rent arrears, nothing in the impugned orders precludes the Appellant from pursuing the remedies available to him in law. 14. I have also considered the Appellant's contention that the Tribunal granted final orders at an interlocutory stage. With respect, I do not agree. A plain reading of the impugned orders demonstrates that they were expressly limited to preserving the prevailing position pending the hearing and determination of the reference. Such orders are, by their very nature, temporary and preservatory. They cannot, in the circumstances of this case, be construed as finally determining the rights of the parties or as amounting to an award of vacant possession in favour of the Respondent. 15. Applying the principles enunciated in **Mbogo & Another -Vs- Shah [1968] EA 93**, I am unable to conclude that the learned Chairperson misdirected himself in law, took into account irrelevant considerations, failed to consider relevant matters, or otherwise exercised his discretion injudiciously. In the absence of any demonstrated error in principle, this Court has no basis upon which to interfere with the Tribunal's exercise of discretion. **Disposition** 1. In the result, I find that the appeal lacks merit and is hereby dismissed. Consequently, I make the following orders: 2. The Appeal is hereby dismissed. 3. The Ruling and Orders of the Business Premises Rent Tribunal delivered on 28th June 2024 in BPRT Case No. E373 of 2024 are hereby upheld. 4. The costs of this appeal are awarded to the Respondent. **It is so ordered** **DATED**, **SIGNED** and **DELIVERED** via e-mail at **NAIROBI** on this **16th** day of **July, 2026.** **bMOHAMMED N. KULLOW** **JUDGE**