https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5281

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCLC NO. E067 OF 2026** **RUTH NYAMBURA NJIIRI......................................PLAINTIFF/APPLICANT** **-VERSUS-** **ANTONY NDUNGU IRUNGU............................DEFENDANT/RESPONDENT** **RULING** 1. Before this court for determination is the notice of motion dated 24th February, 2026 and the notice of preliminary objection dated 10th April, 2026 respectively. The notice of motion dated 24th February 2026, is filed by the plaintiff/applicant and it is expressed to be brought under **Sections 1A,1B** and **3A** of the **Civil Procedure Act** and **Order 51 Rule 1** of the **Civil Procedure Rules** seeking the following orders:- 2. ***Spent.*** 3. ***That pending the hearing and final determination of this application an order do issue compelling the defendant to pay the January and February rent of Kshs.644,000 and rent.*** 4. ***That pending the hearing and final determination of this suit an order do issue compelling the defendant to pay the monthly rent of Kshs.322,000/-, water and electricity bills issued to the suit premises.*** 5. ***That the costs of this application be in the cause.*** 6. The application is premised on the grounds on its face. It is further supported by the affidavit of the plaintiff/applicant sworn on even date. She deposed that she entered into a five- year lease agreement with the defendant/respondent which expired on 31st August, 2025. However, the defendant/respondent has unlawfully refused to vacate the suit premises as required. The plaintiff/applicant further deposed that the defendant/respondent is rent arrears of Kshs.769,000/- and is wasting the suit premises and undertaking constructions without her permission. Further, that she commenced a suit before the business premises rent tribunal vide E709 of 2025seeking recovery of unpaid electricity bill and rent arrears, but she has withdrawn the same. The plaintiff/applicant deposed thatthe defendant’s/respondent’s aforesaid actions have caused her serious financial losses. 7. In response thereto, the defendant/respondent filed the notice of preliminary objection dated 10th April 2026, opposing the instant application and entire suit on the following points:- 8. ***That this honourable court lacks jurisdiction to hear the suit and application by virtue of Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301), which vests jurisdiction in the Business Premises Rent Tribunal (BPRT) in respect of controlled premises.*** 9. ***That there exists pending references before the Business Premises Rent Tribunal (BPRT) being BPRT case no. E709 2025 and no. E257 OF 2026, involving the same parties and subject matter, wherein the legality of the tenancy and termination notice is directly in issue in which references preservatory orders of injunction and maintenance of status quo have been issued.*** 10. ***That this suit is sub-judice and offends Section 6 of the Civil Procedure Act as the issues herein ore directly and substantially in issue before a competent Tribunal.*** 11. ***That the plaintiff is engaging in forum shopping and gross abuse of court and/or judicial process by filing parallel proceedings relating to the same subject matter.*** 12. ***That the suit as drawn and filed expressly violates the doctrine of exhaustion.*** 13. The defendant/respondent also filed the replying affidavit sworn on 10th April, 2026. He deposed that he is in actual occupation of the business premises known as Havis restaurant in garden estate, where he has been a tenant of the plaintiff/applicant and has heavily invested in the said business premises. The defendant/respondent deposed that the said suit premises, being a restaurant, constitutes a controlled tenancy within the meaning of Cap 301. That on 11th November 2025, the plaintiff/ applicant issue a notice requiring him to vacate the premises by 28th November, 2025, being a period of 14 days, allegedly terminating the tenancy. 14. The defendant/respondent deposed that he challenged the notice by filing tribunal case no. E1342 of 2025 and that by an order made on 22nd December, 2O25 the tribunal set aside the said notice. Subsequently, while there existed a valid and subsisting tribunal order restraining the plaintiff/applicant from interfering with the tenancy, she issued a fresh notice dated 22nd December 2025 purporting to terminate the tenancy by 20th February, 2026, a non-existent date, which said notice was invalid, unlawful andcontrary to **Section 4** of **Cap 301**. 15. The defendant/respondent contends that he continues to pay and is ready and willing to continue paying rent and performing all obligations under the tenancy, and that he has already cleared the outstanding electricity arrears which was the basis of the plaintiff/applicant’s grievance in tribunal case no. E709 OF 2025. He deposed that there is no lawful cause for the plaintiff/applicant to evict him from the business premises. 16. The application and the preliminary objection were canvassed through written submissions. The plaintiff/applicant filed written submissions dated 11th April 2026, while the defendant/respondent filed written submissions dated 23rd July, 2026. I have considered the pleadings filed as well as the written submissions. The two issues for determination is *whether this court lacks the jurisdiction to hear and determine the suit, and whether the plaintiff/applicant is entitled to the orders sought*. 17. The plaintiff/applicant filed the instant suit seeking orders to compel the defendant/respondent to pay rent arrears, and the pending electricity and water bills. However, there is a notice of preliminary objection on record that must first be addressed as a preliminary matter before handling the substantive application. 18. According to black’s law dictionary 8th Edition, a preliminary objection is defined as being:- ***“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…”*** 1. The above legal preposition has been cemented in the now famous case of **Mukisa Biscuit Manufacturing Co. Ltd –VS- West End Distributors Ltd. [1969] E.A. 696.** The court then held that:- ***“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. 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 in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop”*** 1. The first point in the defendant/respondent’s preliminary objection is that this court lacks the requisite jurisdiction to hear and determine this matter, which jurisdiction is reserved for the business premises rent tribunal. Jurisdiction is certainly a pure point of law since without it, the court cannot make any further steps to hear and determine the matter. In the words of the famous case on jurisdiction, the **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR,** it was stated:- ***“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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”*** 1. **Section 12** of the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301** which establishes the business premises rent tribunal provides as follows:- ***“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—*** 1. ***to determine whether or not any tenancy is a controlled tenancy;*** 2. ***to determine or vary the rent to be payable in respect of any controlled tenancy, having regard to all the circumstances thereof;*** 3. ***to apportion the payment of rent payable under a controlled tenancy among tenants sharing the occupation of the premises comprised in the controlled tenancy;*** 4. ***where the rent chargeable in respect of any controlled tenancy includes a payment by way of service charge, to fix the amount of such service charge;*** 5. ***to make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy;*** 6. ***for the purpose of enabling additional buildings to be erected, to make orders permitting landlords to excise vacant land out of premises of which, but for the provisions of this Act, the landlord could have recovered possession;*** 7. ***where the landlord fails to carry out any repairs for which he is liable—*** 8. ***to have the required repairs carried out at the cost of the landlord and, if the landlord fails to pay the cost of such repairs, to recover the cost thereof by requiring the tenant to pay rent to the tribunal for such period as may be required to defray the cost of such repairs, and so that the receipt of the tribunal shall be a good discharge for any rent so paid;*** 9. ***to authorize the tenant to carry out the required repairs, and to deduct the cost of such repairs from the rent payable to the landlord;*** 10. ***to permit the levy of distress for rent;*** 11. ***to vary or rescind any order made by the tribunal under the provisions of this Act;*** 12. ***to administer oaths and order discovery and production of documents in like manner as in civil proceedings before the high court, to require any landlord or tenant to disclose any information or evidence which the tribunal considers relevant regarding rents and terms or conditions of tenancies, and to issue summons for the attendance of witnesses to give evidence or produce documents, or both, before the Tribunal;*** 13. ***to award costs in respect of references made to it, which costs may be exemplary costs where the tribunal is satisfied that a reference to it is frivolous or vexatious;*** 14. ***to award compensation for any loss incurred by a tenant on termination of a controlled tenancy in respect of goodwill, and improvements carried out by the tenant with the landlord’s consent;*** 15. ***to require a tenant or landlord to attend before the tribunal at a time and place specified by it, and if such tenant or landlord fails to attend, the tribunal may investigate or determine the matter before it in the absence of such tenant or landlord;*** 16. ***to enter and inspect premises comprised in a controlled tenancy in respect of which a reference has been made to the tribunal..”*** 17. The Environment and Land Court has been given appellate jurisdiction only over decisions of the tribunal under **Section 15** which provides that:- ***“(1)Any party to a reference aggrieved by any determination or order of a tribunal made therein may, within thirty days after the date of such determination or order, appeal to the environment and land court: Provided that the environment and land court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.”*** 1. However, this is not an appeal from a decision of the business premises rent tribunal, thus the preliminary point of jurisdiction is in order. 2. The defendant/respondent further contended that the suit offends the doctrine of exhaustion. It is trite law that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process. This was well set out in the case of **Speaker of the National Assembly v James Njenga Karume [1992] eKLR**, where the court of appeal held that: - ***“… In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the constitution or an act of parliament, that procedure should be strictly followed.”*** 1. The plaintiff/ applicant argued that the lease agreement between the parties has expired. On the other hand, the defendant/ respondent maintained that there is still a valid tenancy relationship in existence. This question, in my view, can only be answered by the said tribunal clothed with the requisite jurisdiction under **Section 12(a) of Cap. 301**. If the plaintiff/applicant was aggrieved by the orders of the tribunal restraining an interference with the tenancy, she would have invoked the appellate jurisdiction of this court, which she has not done. An attempt to withdraw the suit from the tribunal does not negate the fact that the defendant/respondent had initiated BPRT no. 1342 of 2025 before the tribunal which is still pending, and which can only be determined by the tribunal. 2. Having said the above, I find the suit and the application a gross abuse of court process. That means the court has no jurisdiction to determine the entire suit. Therefore, the plaint dated 24th February, 2026 is struck out with costs to the defendant/respondent. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY THIS** **12TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **12/08/2026.** ***In the presence of:-*** *Mr. Benson Agunga – Court assistant* *No appearance for the Plaintiff/Applicant* *No appearance for the Defendant/Respondent*