https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3179

Musa v Kahara & another (Environment and Land Appeal E013 of 2025) [2026] KEELC 3179 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 3179 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Appeal E013 of 2025 LN Gacheru, J May 15, 2026 Between Mohamed Ahmed Musa Appellant and Peris Njoki Kahara 1st Respondent Sanjomu Auctioneers 2nd Respondent (Being an Appeal from Ruling of the Business Premises Rent Tribunal at Nakuru delivered by Hon. Patricia May on the 27th June 2025 in Nakuru case BPRT E040 of 2025) Ruling 1.The Appellant/ Applicant herein Mohamed Ahmed Musa, filed this Appeal vide a Memo of Appeal dated 24th July 2025, against the Ruling of Nakuru BPRT, wherein the Tribunal allowed a Preliminary Objection filed by the Landlord, the 1st Respondent thereon, who is also the 1st Respondent herein, on the basis that the suit before the Tribunal was in offence of section 7 of the Civil procedure Act, and thus the suit was dismissed with costs to the Landlord. 2.Simultaneously, the Appellant/Applicant filed a Notice of Motion Application even dated under a Certificate of Urgency, and sought for injunctive Orders against the Respondents to restrain them from levying distress for rent or interfering with the Appellant/ Applicant occupation of Plot No 48 Olpusimur, Narok West. The court granted temporary orders on the first instance, and gave a date for inter-parties hearing. 3.The 1st Respondent opposed the Application through her Replying Affidavit dated 29th September 2025, wherein she averred that the Application for injunction was incompetent, vexatious, scandalous, incurably defective in substance and law, and otherwise an abuse of the court process and should be dismissed. 4.The 1st Respondent also averred that she is the registered proprietor of all that parcel of land known as plot No 48 Olpusimoru Narok West, vide a purchase following a decision by Kericho Kadhi’s Court, and therefore, the Appellant/Applicant is a stranger to her, as he is not her tenant. Further, that the order for distress for rent was issued to one Ainashe Ahmed, and not the Appellant/Applicant herein, Mohammed Ahmed Musa. 5.Further, the 1st Respondent filed a Notice of Preliminary Objection dated 29th September 2025, and urged the court to strike out the instant Appeal with costs on the following grounds;i.The appeal and application before the court are incompetent, vexatious, scandalous, incurably defective in substance and law, and an abuse of the court process, judicial time and resources and should be dismissed and expunged from the court record,ii.The court has no jurisdiction to hear and determines this matter,iii.The application has been placed before the wrong court,iv.The preliminary objection is meritorious, and the application dated 24th May 2025, should be struck out with costs. 6.Since the Notice of Preliminary Objection is challenging the jurisdiction of this court, the court directed the same be canvassed first through written submissions, which directives were complied with by the parties herein. 7.The 1st and 2nd Respondents filed their written submissions dated 9th December 2025, through Karanja Njau & Co Advocates, and urged the court to allow the instant Notice of Preliminary Objection. 8.The Objectors set out four issues for determination being;i.Whether this court as ELC has jurisdiction to entertain a dispute arising from the distress for rent under the Landlord and Tenant (shop, hotels and catering establishment) Act, Cap 301 Laws of Kenya.ii.Whether the applicant has locus standi before the court;iii.Whether the application dated 24th July 2025, is incompetent, fatally defective and an abuse of the court process;iv.Whether the preliminary objection is meritorious and should be upheld. 9.The Objectors relied on various decided cases among them the case of Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil 9 K) Ltd (1989) KLR 1, where the court held that; jurisdiction is everything; without it, a court has no power to make one more move. 10.It was their further submissions that since the instant Appeal and Application emanate from the decision of BPRT, which Tribunal deals with Controlled tenancies, and distress for rent among others, then this court as the Environment and Land Court(ELC), has no statutory mandate to supervises or re-determine rent related matter. Reliance was sought in the cases of Pritam vs Ratilal (1972) EA 560; R vs BPRT & Another Exparte Abdukadir Shariff Abdirahim (2014) eklr; Patrick Muiruri vs BPRT &Another (2015) eklr; where the court held; appeals from BPRT lie only on points of law and not factual rent determination. 11.Therefore, the Objectors argued that this court lacks jurisdiction to hear and determines the Appeal as it is, and the accompanying Notice of Motion Application. 12.On whether the Appellant/ Applicant has jurisdiction, the Objector submitted that the Appellant/Applicant is a stranger to the premises, and has no tenancy relationship with the 1st Respondent, and thus has no capacity to challenge the distress for rent. Reliance was sought in the case of Alfred Njau & Others vs City Council of Nairobi (1982) eklr, where it was held that locus standi requires sufficient interest in the subject matter. 13.On whether the Application dated 24th July 2025, is incompetent and fatally defective, and an abuse of the court process, it was submitted that the Appellant/ Applicant is not a tenant in occupation, and the Notice of distress and change of ownership was served upon the actual tenant, and the Appellant/ Applicant failed to give full material disclosure, and thus the Application herein and the Appeal should be struck out, with costs. 14.For the above submissions, reliance was sought in the cases of Bahadurali Ebrahim Shamji vs Noor Jamal & Others (1998)eklr; Safaris Unlimited (Africa0 vs Muchanga Investment ( 2009) eklr; and a Nigerian case of Karibu Whytie J SC in Sakar vs Kotoye ( 1992) 9 NWLR 9 PT 264 AT 188-189(E); where the court held that;“the concept of abuse of judicial process is imprecise, it’s implied circumstances and situations of infinite variety and conditions. Its one feature is the improper use of judicial powers by a party in litigation to interfere with the administration of justice’’ 15.Ultimately, the Respondents submitted and argued that this Court lacks jurisdiction to entertain this suit; the Appellant/Applicant lacks locus standi, and is a stranger to the premises or tenancy; the Application is incompetent, vexatious and an abuse of the court process, and the instant Notice of Preliminary Objection is meritorious and should be upheld. 16.The Appellant /Applicant opposed the Preliminary Objection, vide his written submissions dated 25th February 2026, filed by Kenka & Co Advocates, wherein he set out one issue for determination being; whether the court has jurisdiction to hear and determine the Appeal arising from the BPRT. 17.Reliance was sought in Article 162(2)(b), of the Constitution, which establishes the Environment and Land Court, to determines matters relating to environment, use and occupation of title to land. He further submitted that he was in use and occupation of land, or subject plot No 48 Olpusimur Narok West, and thus the court has jurisdiction to hear and determines the Appeal, and the instant Application. 18.Reliance was also sought in section 13(1) of the Environment and Land Court Act, which sets out the jurisdiction of this court to hear and determines original and appellate disputes relating to land and environment. Further, section 13(4) expressly extends jurisdiction of this court to determines Appeals from subordinate courts and local tribunals. 19.It was also his submissions that section 15 of Cap 301, expressly confers appellate jurisdiction to this court by stating; ‘’ any party to a reference aggrieved by ant party determination or orders of a tribunal may, within 30 days after the date of such determination or order, appeal to the ELC’’ 20.It was his further submissions that the provisions of section 15 of Cap 301, leaves no ambiguity that the Appellate forum for BPRT matters the Environment and Land Court and the dispute herein involves Controlled tenancy, and therefore, this court has jurisdiction to hear and determines the matter. Reliance was sought in the case of Ndirangu t/a Inter Vehicle Sales & 6 others vs Muhu Holdings Company Ltd (ELC Appeal E085 of 2021) (2024) KEELC 4117(KLR) (7 May 2024) (Ruling). 21.Therefore, it was the appellant/ applicant’s submissions that this Notice of Preliminary Objection is misconceived, unstainable, lacks legal basis because the law is clear that Appeals from BPRT lie at the Environment and Land Court. Further, that the Appellant is a tenant in the suit premises and actively participated in the proceedings before the BPRT, and he produced rent receipts, and thus he is a tenant under Cap 301, and is clothed with requisite locus standi to institute and prosecute the matter before the tribunal and this court, and thus has locus standi to institute and prosecute the instant Appeal, and Application. 22.He urged the court to dismiss the instant Preliminary Objection with costs, and affirms the Court’s jurisdiction. 23.This court has considered the instant Notice of Preliminary Objection which is challenging the jurisdiction of this court, and the locus standi of the Appellant / Applicant herein. Before delving into the merit of this Preliminary Objection, the court will first determine whether what has been raised herein is a Preliminary Objection or not. 24.It is evident that a Preliminary Objection is a legal challenge raised at the start of a case, based purely on a point of law, which, if sustained, disposes of the entire suit without requiring evidence. The Preliminary Objection in some instances asserts that the court lacks jurisdiction, the case is invalid, or the suit is prohibited by law. See the case Mutemi & another v Mwove & 6 others (Environment and Land Petition E001 of 2025) [2025] KEELC 8705 (KLR) (8 December 2025) (Ruling). 25.The definition of Preliminary Objection was given in the locus classicus case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969)EA 696 as follows:“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 26.Further, Sir Charles Newbold, rendered himself as follows in the same case:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion…” 27.The Supreme Court of Kenya, in the case of Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others SCK Petition No 10 of 2013, affirmed the above threshold in the following words:“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 28.It is evident that a proper Preliminary Objection is on pure points of law, and it should be capable of disposing the matter at a preliminary stage; and such examples of Preliminary Objection are on jurisdiction, locus standi, and limitation of action. See the case of Quick Enterprises Ltd Vs Kenya Railways Corporation, Kisumu HCCC No.22 of 1999, the Court held that: -“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.” 29.The Respondents’ Notice of Preliminary Objection is on jurisdiction, and locus standi, or capacity/ standing of the Appellant/Applicant herein, and thus it falls within the purview of what constitutes a pure Notice of Preliminary Objection, since it is on pure points of law, and is capable of disposing of the matter at the preliminary stage as was held in Mukisa Biscuits Case( supra). 30.Having found that the Notice of Preliminary Objection herein is on a pure point of law, and fits the description of a Preliminary Objection, the next question to determine is whether the said Preliminary Objection is merited or not merited. 31.The dispute herein emanates from a distress for rent over the suit premises; Plot No 48 Olpusimur, Narok West, which distress for rent and the Proclamation thereon was issued to Ainashe Ahmed, the tenant on the suit property. 32.From the annextures herein, it is evident that the 1st Respondent acquired the suit property after purchase from the estate of Musa Ismael Ali, with the sanction of the Kadhi’s Court at Kericho, vide a sale agreement dated 21st September 2023, wherein the purchaser, being the 1st Respondent was granted immediate possession of the suit premises after payment of the full purchase price. 33.The transfer of the suit plot was validated by Narok County Government vide a letter dated 24th February 2025, and a Notice to vacate the premises had been issued to Ainashe Ahmed, who was the tenant for the estate. The issue of stay of levy of distress for rent was dealt with vide the Ruling of the High Court dated 19th November 2024, and the tenant was identified as Ainashe Ahmed. 34.Further, it is evident that Orders to levy distress were issued vide a court order dated 15th January 2024, issued on 18th January 2024 by Hon Daniel Ngayo. Therefore, the levy to distress for rent was vide lawful court order, and the tenant thereon was Ainashe Ahmed and not the Appellant/ Applicant herein. 35.If the Appellant/ Applicant is not the tenant who was distressed for rent, and is not a tenant of the owner of the suit property, then he has no capacity to bring this Appeal against the registered owner of the suit premises. The sale agreement was attached, and it does not stipulate that the suit property was passed on to the new owner or purchaser, who is the 1st Respondent, together with the tenants therein. In any event, the tenant was Ainashe Ahmed, and not the Appellant/ Applicant herein, Mohamed Ahmed Musa. 36.This Court concurs with the Respondents submissions that the Appellant /Applicant herein has no locus standi, Capacity and/ or standing to bring the suit before the Nakuru BPRT, and this Appeal. The ORDER to levy distress was issued by the subordinate court against Ainashe Ahmed, and not the Appellant/Applicant herein. The proclamation of attachment of movable goods was issued to Ainashe Ahmed, and not the Appellant/ Applicant herein, and it is evident the suit premise has a new owner through a Kericho Kadhi’s Court sanctioned sale, which transfer was validated by the County Government of Narok. 37.If Ainashe Ahmed was aggrieved by the order of the court issued on 18th January 2024, he should have filed an Appeal against the said Order, and /or the Appellant/Applicant herein should have sought for joinder in the said suit, but not to file a suit before Nakuru BPRT to challenge the said Distress for rent, which was sanctioned by the court. Indeed, the Appellant/Applicant has no locus standi, which is Capacity to appear or a Standing before the Court. 38.Locus standi (legal standing), refers to the right or capacity of a party to appear and be heard before a court of law, requiring the person to demonstrate sufficient interest or stake in the matter. See the case of Law Society of Kenya v Commissioner of Lands & 2 Others (2001)eklr , where the Court held ;“locus standi signifies a right to be heard. A person must have sufficiency of interest to sustain his standing to sue in a Court of Law." 39.It is trite that this principle is intended to prevent "busy-bodies" (people with no genuine stake) from clogging the court system, while ensuring that the pursuit of justice is not stifled by a very narrow interpretations of who can approach the courts. See the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Another (2013) eklr; where the Court of Appeal held;Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution, which provides that: Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention’’ 40.As stated above, the suit premises was purchased by the 1st Respondent from the estate of Musa Ismael Ali, with the permission of Kericho Kadhi’s Court. Thereafter, the purchaser issued a Notice of change of ownership and Vacation Notice to the tenant, Ainashe Ahmed, and various courts proceedings followed. 41.The Appellant/ Applicant was not issued with any distress for rent, and did not join as a party in any of the proceedings that allowed distress for rent. Having not been issued with any distress for rent, then he cannot claim that he is being distressed, and the 1st Respondent being a new owner, did not enter into any tenancy agreement with him, written or unwritten. Thus, the Appellant/Applicant has no standing or locus standi to sue the Respondents herein, who had a court order to distress for rent, which had not been reviewed, set aside and/ or vacated. See the case of Alfred Njau & Others v City Council of Nairobi (1982), where the Court of Appeal defined the term as follows;“locus standi means a right to appear in Court and conversely, to say that a person has no locus standi means that he has no right to appear or be heard in such and such proceedings." 42.Without locus standi or standing, this suit cannot stand, and thereof, the Court finds and holds that the Preliminary Objection on locus standi, is merited and proceeds to allow the said Notice of Preliminary Objection dated 25th September 2025. Consequently, the court allows the instant Objection and proceeds to strike out the entire Appeal and the accompanying Application dated 24th July 2025, with costs to the Respondents. 43.Having found that the Appellant/Applicant had no locus standi to file the suit before the Nakuru BPRT, and this Appeal, the court finds no reasons to deal with the issue of jurisdiction or abuse of the court process. The Appeal is struck out for want of standing. 44.For avoidance of doubt, the Preliminary Objection dated 25th September 2025, is allowed with costs to the Respondents, and the interim and /or temporary Orders of injunction are vacated forthwith.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY 2026.L. GACHERUJUDGE.15TH MAY 2026.Delivered online in the presence of.Elijah Meyoki - Court Assistant.N/A for the Appellant/ApplicantN/A for the RespondentsL. GACHERUJUDGE