https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4393

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC APPEAL NO. E032 OF 2026** **OSWEA PHELIX APPELLANT** **-VERSUS-** **MELROK ENERGY LIMITED 1ST RESPONDENT** **AUCKLAND AGENCIES AUCTIONEERS 2ND RESPONDENT** ***(Being an appeal against the Ruling of Hon. Patrick Kitur, Member, delivered on 19th February 2026* *in Business Premises Rent Tribunal Case No. E1385 of 2025 at Nairobi)*** **JUDGMENT** 1. This is an appeal from the Ruling of the Business Premises Rent Tribunal at Nairobi (Hon. Patrick Kitur, Member) delivered on 19th February 2026 in Tribunal Case No. E1385 of 2025, Oswea Phelix v Melrok Energy Limited & Auckland Agencies Auctioneers (“the Tribunal” and “the impugned Ruling”, respectively). 2. The Appellant, dissatisfied with the whole of the impugned Ruling, filed a Memorandum of Appeal dated 25th February 2026, together with a Record of Appeal dated 5th May 2026 filed on 5th June 2026, and written submissions dated 8th May 2026. The 1st and 2nd Respondents filed joint written submissions dated 9th June 2026, together with a List of Authorities of even date. 3. Having carefully considered the Record of Appeal, the rival written submissions and the authorities relied upon by both sides, I now render my decision. **Background** 4. The Appellant is the tenant of business premises known as Shop No. 3 erected on L.R. No. 136/7879, situate at Ruai Shell Petrol Station along Kangundo Road, Nairobi (“the suit premises”), where he has, since 2019, operated a restaurant business known as Caffetica Restaurant. The 1st Respondent is the registered proprietor of the suit premises and the Appellant’s landlord. The 2nd Respondent is a licensed auctioneering firm engaged by the 1st Respondent. 5. By a written Lease Agreement dated 1st April 2019, the 1st Respondent let the suit premises to the Appellant for a term of five years commencing 1st July 2019, at a stated monthly rent of “Kshs. 90,000 plus 16% VAT making it a total of Kshs. 106,000 per month” (page 16 of the Record of Appeal). It is a matter of simple arithmetic that 16% VAT on Kshs. 90,000 amounts to Kshs. 14,400, producing a total of Kshs. 104,400, and not Kshs. 106,000 as recorded in the lease. This discrepancy, though it may at first appear immaterial, assumed real significance in the dispute that followed, as I shall demonstrate. 6. The written lease expired by effluxion of time on 31st July 2024. It is not disputed that the Appellant remained in occupation thereafter with the knowledge and consent of the 1st Respondent, who continued to demand and accept rent, giving rise to a controlled, month-to-month tenancy within the meaning of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 (“Cap 301” or “the Act”). 7. The Appellant fell into rent arrears, a fact he has consistently admitted, attributing the default to business hardship and personal medical emergencies. He avers that the parties thereafter renegotiated rent downward to a consolidated figure of Kshs. 90,000 per month inclusive of VAT, and that he engaged the 1st Respondent in good-faith negotiations towards liquidating the arrears by instalments. 8. On 26th November 2025, the 1st Respondent’s director addressed a letter to the Appellant styled “Re: Termination of Lease”, purporting to give ninety (90) days’ notice to vacate effective 1st December 2025 (page 42 of the Record). It is common ground that this letter was served on the Appellant, through his receptionist, only on 1st December 2025. 9. On 28th November 2025, the 2nd Respondent, acting on the 1st Respondent’s instructions, issued a Proclamation of Attachment/Repossession/Distraint of Movable Property against the Appellant’s business assets, including a coffee-making machine, a pizza oven, a deep freezer, tables, chairs, cookers, and Motor Vehicle Registration No. KCW 822W (page 25 of the Record), which the Appellant asserts belongs to his spouse and does not form part of the tenancy’s commercial assets. 10. On 2nd December 2025, the Appellant filed a Reference (Form C) and a Notice of Motion Application under Section 12(4) of Cap 301 before the Tribunal, being BPRT/E1385/2025, complaining that the Respondents had (a) unlawfully instructed the 2nd Respondent to levy distress and proclaim his assets without leave of the Tribunal, (b) threatened to auction essential business equipment to the detriment of his business, and (c) disregarded ongoing negotiations for settlement of the arrears by instalments, and seeking injunctive relief pending the hearing and determination of both the Application and the substantive Reference. 11. On 5th December 2025, the Tribunal (Hon. Gad Chemoiyai) granted ex parte interim orders restraining the Respondents from levying distress, auctioning or otherwise dealing with the Appellant’s property pending inter partes hearing, and directed the OCS Ruai to ensure compliance. 12. On 18th December 2025, upon the inter partes hearing before Hon. Gakuhi Chege and Hon. Joyce Osodo, the parties agreed to canvass the Application by way of written submissions. The Tribunal extended the interim orders on condition that the Appellant pays Kshs. 350,000/= within seven (7) days, granted him fourteen (14) days to file a further affidavit and written submissions, and the Respondents a like period thereafter to respond, with a mention for compliance on 20th January 2026. It is common ground that the Appellant duly paid the sum of Kshs. 350,000/=, albeit the record shows this was completed by tranches over January 2026, together with rent for January 2026. 13. The 1st Respondent filed a Replying Affidavit sworn on 17th December 2025 by its director, Peter Gakungi Kuria, contending that the agreed rent was Kshs. 90,000 exclusive of VAT (i.e. Kshs. 104,400 inclusive of VAT), and that the Appellant was, as at 17th December 2025, indebted in the sum of Kshs. 962,340/=, exclusive of VAT, per a Rent Statement of Account annexed thereto (“PGK-2”, pages 43–44 of the Record). The 1st Respondent denied that the termination notice of 26th November 2025 was in any way irregular and maintained that leave of the Tribunal was not a precondition to levying distress, citing **John Nthumbi Kamwithi v Asha Akumu Juma [2018] eKLR.** 14. The Appellant filed a Further Affidavit sworn on 18th December 2025, disputing the 1st Respondent’s computation and maintaining that the agreed rent was Kshs. 90,000/= inclusive of VAT; that the correct arrears, after accounting for a set-off of Kshs. 19,030/= in respect of hotel meals consumed by the 1st Respondent’s director (as opposed to the Kshs. 14,760/= credited in the Landlord’s own schedule) and other payments, stood at Kshs. 957,770/=; and that the termination notice was invalid for having been backdated and issued in non-prescribed form. 15. Both parties thereafter filed written submissions confined, on their face, to the Notice of Motion Application the Appellant’s Written Submissions dated 18th December 2025, and the Respondents’ Written Submissions dated 26th January 2026 addressing principally the threshold for grant of a temporary injunction under **Giella v Cassman Brown & Co. Ltd [1973] EA 358.** 16. On 19th February 2026, the Tribunal delivered the impugned Ruling. It found that the Landlord had discharged the burden of proving arrears of Kshs. 962,340/=; that VAT was properly chargeable as a statutory impost; that the Appellant, being in admitted and substantial arrears, did not come to the Tribunal with clean hands and was undeserving of equitable relief; and, separately, that the termination notice of 26th November 2025 was procedurally defective for non-compliance with Section 4(2) of Cap 301 and could not found an order for vacant possession. The Tribunal thereupon (a) dismissed “the Tenant’s Complaint and Application” dated 2nd December 2025 for want of merit; (b) ordered the Appellant to pay Kshs. 962,340/= as at December 2025, together with applicable VAT, and to settle all outstanding rent, VAT and incidental costs not later than 15th March 2026, in default of which the Landlord would be at liberty to distress without further reference to the Tribunal; (c) granted the Landlord liberty to issue a fresh notice in compliance with Cap 301; (d) awarded costs of Kshs. 40,000/= to the Landlord; and (e) marked the file closed. 17. Aggrieved, the Appellant lodged the present appeal, together with an application dated 25th February 2026 for stay of execution. On 9th March 2026, this Court granted interim stay on condition that the Appellant pays Kshs. 600,000/= within thirty days, which condition the Appellant met on 7th April 2026. Notwithstanding, the Respondents locked the Appellant out of the suit premises on 30th March 2026, purportedly pursuant to a fresh statutory notice dated 27th January 2026 said to have lapsed on 27th March 2026. The Appellant responded with an application for contempt dated 31st March 2026. Both the stay question and the contempt application were determined by this Court in a Ruling delivered on 30th April 2026, by which the Court, inter alia, stayed execution of the impugned Ruling, directed that the status quo be maintained with the Appellant remaining in possession of the suit premises without operating business therein, dismissed the contempt application, and reserved the costs of both applications to the cause. **Grounds of appeal** 18. The Memorandum of Appeal dated 25th February 2026 raises eleven grounds which, distilled, fall into three broad complaints: first, that the Tribunal erred in dismissing the substantive Reference and closing the file at what was, in substance, an interlocutory stage, without affording the Appellant a hearing on the merits (grounds 1 and 3); second, that the Tribunal erred in ordering payment of Kshs. 962,340/= together with VAT without resolving contested questions going to quantum the rent variation, the set-off, proof of VAT compliance, and credit for the Kshs. 350,000/= paid pursuant to the Tribunal’s own order (grounds 4, 5, 6, 7, 9 and 10); and third, that the Tribunal failed to exercise its discretion under Section 12(4) of Cap 301 to structure payment of any arrears found due, and erred in awarding costs against the Appellant (grounds 2 and 11). **The rival submissions** 19. The Appellant, in his written submissions dated 8th May 2026, and relying on **Abok James Odera t/a J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, DT Dobie & Company (Kenya) Ltd v Muchina & Another [1980] KECA 3 (KLR), Kezia Wambui Mwaura & Another v Clement J.M. Kariuki & 4 Others [2017] KECA 582 (KLR) and Richard Ncharpi Leiyagu v IEBC & 2 Others [2013] eKLR,** submits that a matter not set down for substantive hearing cannot be summarily dismissed, and that the Tribunal’s approach violated Article 50(1) of the Constitution. On quantum, the Appellant points to the 1st Respondent’s own Rent Schedules for 2024 and 2025 (PGK-2) and the invoice dated 1st December 2025 (OP-3), each reflecting a flat monthly rent of Kshs. 90,000/= with no separate VAT line, and to WhatsApp correspondence and mobile-money confirmations reflecting round payments of Kshs. 90,000/=, as demonstrating that the operative rent was consolidated at that figure and that VAT was never separately billed. The Appellant further submits that no compliant tax invoices were produced to prove the VAT claimed, contrary to Section 42 of the Value Added Tax Act, 2013 and **Payless Car Hire & Tours Ltd v Wells Fargo Ltd [2010] eKLR;** that the Tribunal failed to credit the Kshs. 350,000/= paid pursuant to its own order of 18th December 2025; and that the discretion under Section 12(4) of Cap 301 ought to have been exercised, as in **Omar v Bihi [2025] KEBPRT 428 (KLR),** to structure payment of any arrears rather than impose an “all-or-nothing” ultimatum. 20. The Respondents, in their joint written submissions dated 9th June 2026, maintain that the Appellant’s own admission of arrears of approximately Kshs. 900,000/= sufficed to found the order made; that the marginal difference between the sums respectively contended for (Kshs. 962,340/= against Kshs. 957,770/=) was immaterial and unproved; that the right to a hearing does not require an open-ended trial where the issues have been sufficiently canvassed on affidavit and submissions; and that any omission to credit the Kshs. 350,000/= was, at worst, an arithmetical matter properly raised by way of review before the Tribunal, citing **National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR.** The Respondents further invite this Court to make findings on matters said to have arisen after the impugned Ruling a fresh statutory notice dated 27th January 2026, its lapse on 27th March 2026, and the consequent lockout of 30th March 2026 contending that the tenancy stood lawfully terminated, and pray additionally for a finding on mesne profits. **Analysis and Determination** 21. Having considered the Record of Appeal and the submissions of both sides, three issues arise for determination: 1. **Whether the Tribunal erred in dismissing the Appellant’s substantive Reference and closing the file, in the manner and at the stage that it did;** 2. **Whether the Tribunal erred in ordering payment of Kshs. 962,340/= together with VAT without resolving the contested questions of quantum, rent variation, set-off, proof of VAT and credit for sums paid; and** 3. **Whether the Tribunal failed to properly exercise its discretion under Section 12 of Cap 301, and whether the consequential award of costs should stand.** 22. This being a first appeal, I am guided by the well-settled principle, restated in **Selle v Associated Motor Boat Co. [1968] EA 123 and, as cited by the Appellant, in Abok James Odera (supra),** that a first appellate court must re-evaluate, re-assess and re-analyse the evidence on record afresh and arrive at its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses and making due allowance in that respect. It bears noting that neither the Tribunal nor this Court has had the benefit of viva voce evidence; the entire dispute was, and remains, canvassed on affidavit. That circumstance is itself material to the first issue for determination, to which I now turn. ***(i) Whether the Tribunal erred in dismissing the Appellant’s substantive Reference and closing the file, in the manner and at the stage that it did*** 23. I have carefully considered the trajectory of the proceedings before the Tribunal. The Notice of Motion Application dated 2nd December 2025 sought interlocutory injunctive relief expressly “pending the hearing and determination of this application inter partes” and, separately, “pending hearing and determination of the Substantive Reference to this Honourable Tribunal” (prayers 2 and 3, page 9 of the Record). This dual formulation makes plain that the Application and the Reference were conceived, and pleaded, as two distinct stages: an interlocutory stage to preserve the status quo, and a substantive stage at which the Reference the complaint that distress had been unlawfully levied, that essential business assets were threatened with auction, and that ongoing negotiations for settlement by instalments had been disregarded would be heard and determined on its merits. 24. This distinction was preserved in the Tribunal’s own directions. On 18th December 2025, the Tribunal directed that the parties canvass “the Application” by way of written submissions, granted the Appellant leave to file “a further affidavit (if need be) and written submissions”, and fixed the matter “for mention... to confirm compliance” (page 77 of the Record). At paragraph 15 of the impugned Ruling itself, the Tribunal recorded: “The Tribunal directed that the Application be disposed of by way of written submissions, which the parties duly filed. The matter is now ripe for determination.” Consistently with this framing, the Appellant’s Written Submissions before the Tribunal, dated 18th December 2025, are structured entirely around the three-limb test in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** for grant of a temporary injunction. 25. Notwithstanding this consistent framing of the matter as interlocutory, the Tribunal’s ultimate orders went well beyond the grant or refusal of interim relief. The Tribunal did not merely decline to extend the injunction; it proceeded, in the same breath, to make final and conclusive findings on the quantum of rent arrears, the applicability and computation of VAT, and the lawfulness of the distress, and thereupon dismissed “the Tenant’s Complaint and Application” dated 2nd December 2025 in their entirety, ordered final payment of a specific sum with a hard deadline, granted the Landlord unconditional liberty to distress in default “without any further reference to this Tribunal”, and marked the file closed. In substance and effect, the Tribunal thereby finally determined the substantive Reference the very dispute the parties had been told would be addressed separately without either party having been given notice that the Reference itself, as opposed to the Application, was being set down for final hearing and disposal, and without the Appellant having been afforded the opportunity, which he had expressly sought in his Written Submissions dated 18th December 2025 before the Tribunal (page 52 of the Record), to adduce further evidence, including bank statements, going to the disputed rent variation. 26. I am satisfied that this course was procedurally unsound. An interlocutory application, being ancillary to and in aid of a substantive claim, cannot, upon its refusal, be treated as disposing of the substantive claim itself, save where the parties have been heard, or given a fair opportunity to be heard, on the substantive claim as such. The Court of Appeal’s admonition in **DT Dobie & Company (Kenya) Ltd v Muchina & Another [1980] KECA 3 (KLR)** bears repetition: “A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal... for a court of justice ought not to act in darkness without the full facts of a case before it.” Similarly apposite is **Kezia Wambui Mwaura & Another v Clement J.M. Kariuki & 4 Others [2017] KECA 582 (KLR),** where the Court of Appeal set aside a dismissal made at a stage when the suit had not been fixed for hearing, holding that the effect was to violate the right to fair hearing guaranteed under Article 50(1) of the Constitution. 27. I do not accept the Respondents’ contention that no useful purpose would have been served by a further hearing because the Appellant’s own admissions rendered the matter incapable of any other outcome. It is correct, and I so find, that the Appellant has at all material times admitted owing substantial rent arrears; that much has never been in genuine dispute. What was, and remains, genuinely in dispute is (i) the rate at which rent fell due and whether VAT was payable in addition to, or as a component of, the sum of Kshs. 90,000/= actually invoiced and paid; (ii) the precise quantum of the set-off for hotel meals; (iii) whether, and to what extent, sums paid by the Appellant including the Kshs. 350,000/= paid pursuant to the Tribunal’s own conditional order had been credited before the final figure was struck; and (iv) whether the goods proclaimed, in particular Motor Vehicle Registration No. KCW 822W and certain items said to constitute tools of trade, were lawfully subject to distress. These are not peripheral or fanciful matters; they go to the very core of what the Appellant may lawfully be called upon to pay and what property may lawfully be attached in default. Where, as here, genuine and material disputes of fact subsist on the affidavits, and a party has expressly sought leave to adduce further documentary proof, fairness required that the Reference be formally set down and heard, rather than summarily disposed of under cover of a ruling on an interlocutory application. 28. I therefore find that the Tribunal erred in law and occasioned a breach of the Appellant’s right to a fair hearing under Article 50(1) of the Constitution by dismissing the substantive Reference and closing the file in the manner it did. Grounds 1 and 3 of the Memorandum of Appeal succeed. ***(ii) Whether the Tribunal erred in ordering payment of Kshs. 962,340/= together with VAT without resolving the contested questions of quantum, rent variation, set-off, proof of VAT and credit for sums paid*** 29. Flowing from the finding above, I do not consider it appropriate for this Court, sitting on a first appeal from affidavit proceedings that were never in fact set down for a substantive hearing, to make final and conclusive findings of fact on the disputed rent variation or the precise quantum of arrears. To do so would simply repeat, at this level, the very error identified above determining a live, disputed issue without the parties having had a full opportunity to place before the trier of fact all material evidence, including, as the Appellant has indicated he wishes to produce, bank statements. That determination must, in the first instance, be made by the Tribunal upon a proper hearing of the Reference. 30. I nonetheless consider it necessary, for the guidance of the Tribunal on remittal, to record certain observations on the state of the record as it presently stands. First, the 1st Respondent’s own Rent Schedules for 2024 and 2025 (PGK-2, pages 43–44 of the Record), which form the principal documentary foundation for the sum of Kshs. 962,340/= awarded, record a flat monthly rent of Kshs. 90,000/= throughout, with no separate line item for VAT added to that monthly figure. This is, on its face, difficult to reconcile with the 1st Respondent’s pleaded position, both before the Tribunal and in this appeal, that the agreed rent was Kshs. 90,000/= exclusive of VAT, translating to a total monthly obligation of Kshs. 104,400/=. Likewise, the invoice dated 1st December 2025 (OP-3, page 24 of the Record) records “DECEMBER 2025 RENT” at Kshs. 90,000/=, without any separate VAT component. These internal inconsistencies in the Landlord’s own documentation require explanation and resolution upon a full hearing; they cannot simply be resolved in the Landlord’s favour by reference to the bare wording of a lease that had, by the material time, already expired, and whose own arithmetic (Kshs. 90,000 plus 16% VAT correctly computes to Kshs. 104,400, not the Kshs. 106,000 recorded) was demonstrably erroneous on its face. 31. Second, no tax invoices, compliant or otherwise, were placed before the Tribunal in proof of the VAT component of the sum claimed. Section 42(1) of the Value Added Tax Act, 2013 obliges a registered person making a taxable supply to furnish the recipient with a tax invoice containing the prescribed particulars, and the burden of proving a fact asserted rests, under Sections 107 and 109 of the Evidence Act, Cap 80, on the party who asserts it. Rent schedules and invoices reflecting a flat, VAT-silent monthly figure do not, without more, discharge that burden. I am fortified in this view by the reasoning in Payless Car Hire & Tours Ltd t/a Budget Rent A Car of Kenya v Wells Fargo Ltd [2010] eKLR, where the Court declined to treat non-compliant invoices as a sound basis for a demand including VAT, holding that such non-compliance raises serious issues fit for trial. It follows that the Tribunal’s order that the Appellant pay Kshs. 962,340/= “together with the applicable Value Added Tax” cannot stand absent proof, by way of compliant tax invoices or other cogent evidence, of the VAT properly due; this too is a matter for determination upon the fresh hearing. 32. Third, I am satisfied, on a straightforward reading of the record, that the Tribunal did not, in fixing the sum of Kshs. 962,340/= as the amount payable, give credit for the balance of the Kshs. 350,000/= paid by the Appellant pursuant to the Tribunal’s own conditional order of 18th December 2025. The figure of Kshs. 962,340/= is expressly stated to be “as at December 2025” and derives from the Rent Statement annexed to the 1st Respondent’s Replying Affidavit sworn on 17th December 2025 that is, before the bulk of the Kshs. 350,000/= (evidenced by the email of 29th January 2026 at page 63 of the Record) had been paid. Whatever view is ultimately taken of the correct rent rate and VAT treatment, fairness and the avoidance of double recovery required that the Tribunal, in fixing the final sum payable by 15th March 2026, account for payments made in the interim pursuant to its own orders. Its failure to do so was an error apparent on the face of the Ruling. I do not consider the Respondents’ submission, that this was a matter properly left to review, to be a sufficient answer; where, as here, the error forms part of a wider pattern of premature and incomplete adjudication, it is properly addressed as part of this appeal. 33. Fourth, the dispute as to the set-off for hotel meals (Kshs. 14,760/= credited by the Landlord against Kshs. 19,030/= claimed by the Appellant), and the dispute as to whether the goods proclaimed on 28th November 2025 including Motor Vehicle Registration No. KCW 822W, said by the Appellant to belong to his spouse, and certain items said to constitute exempt tools of trade under Section 16 of the Distress for Rent Act, Cap 293 were lawfully subject to distress, were live, unresolved, and require determination upon proper evidence, including, where ownership of the motor vehicle is disputed, documentary proof from the Registrar of Motor Vehicles, and, where exemption is claimed, proof that the items in question were tools of the Appellant’s personal livelihood in actual use, as opposed to general commercial assets. 34. For the foregoing reasons, grounds 4, 5, 6, 7, 9 and 10 of the Memorandum of Appeal succeed to the extent that the Tribunal’s final determination of quantum, VAT and set-off cannot be sustained without a proper hearing of the Reference. I make no final finding on what the correct figures ultimately are, that being a matter for the Tribunal upon remittal. ***(iii) Whether the Tribunal failed to properly exercise its discretion under Section 12 of Cap 301, and whether the consequential award of costs should stand*** 35. Section 12(4) of Cap 301 empowers the Tribunal to “investigate any complaint relating to a controlled tenancy... and... make such order thereon as it deems fit”, while Section 12(1)(e) empowers orders for recovery of arrears “upon such terms and conditions as it thinks fit”. These provisions vest the Tribunal with wide remedial discretion, exercisable, as recognised in **Omar v Bihi [2025] KEBPRT 428 (KLR),** to structure payment of arrears in a manner that balances the landlord’s entitlement to recovery against a tenant’s demonstrated willingness and capacity to pay. Given that I have found the underlying quantum itself to be unresolved and requiring a fresh hearing, it would be premature for this Court to direct, in the abstract, what structured mode of repayment ought now to apply. I confine myself to holding that, upon the fresh hearing of the Reference, the Tribunal ought to give real consideration to the Appellant’s conduct including his admitted arrears, his compliance with the Tribunal’s earlier conditional orders, and any further sums paid in the interim in fashioning appropriate terms under Section 12, rather than defaulting, as before, to a single lump-sum ultimatum. 36. It follows that the order for costs of Kshs. 40,000/= made against the Appellant before the Tribunal, having been made as part of a determination I have now set aside, cannot stand and must fall away, the costs of the Reference before the Tribunal to abide the outcome of the fresh hearing. **Matters not determined** 37. The Respondents’ written submissions dated 9th June 2026 invite this Court to pronounce upon the validity and effect of a fresh statutory notice dated 27th January 2026, its purported lapse on 27th March 2026, the lockout of 30th March 2026, and the Appellant’s consequent liability for mesne profits, praying for declaratory findings to that effect. I decline this invitation, for the following converging reasons. 38. First, an appeal is confined to the decision under challenge and to the grounds properly pleaded against it. The Ruling appealed from, delivered on 19th February 2026, dealt only with the termination notice of 26th November 2025, which the Tribunal itself found defective; it neither considered, nor could have considered, a notice dated over a month later. Correspondingly, the Memorandum of Appeal dated 25th February 2026 which delimits the scope of this appeal could not, and does not, plead any ground touching on the January 2026 notice. It is trite that the parties, and the court itself, are bound by the pleadings before it, and that it is neither desirable nor permissible for a court to frame or determine an issue that does not arise from them. The Court of Appeal affirmed this principle in **Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR, approving the observation of the Nigerian Supreme Court in Adetoun Oladeji (Nig) Ltd v Nigeria Breweries Plc SC 91/2002** that a party is not permitted to depart from its pleadings, and that the court itself is as bound by the pleadings as the parties are. The Supreme Court of Kenya applied the like principle in **Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR**, holding that “it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.” Equally instructive is the Court of Appeal’s caution in **Kenya Commercial Bank Ltd v Osebe [1982] KLR 292,** that a court ought not to determine an issue raised for the first time without the opposite party having had fair notice of it, since the facts, if fully investigated, might not have supported the new plea. 39. Second, a respondent to an appeal who wishes the appellate court to pronounce on matters extending beyond a mere defence of the decision appealed from more so where, as here, the relief sought includes affirmative declarations of lawful termination and a finding on mesne profits must do so by way of a cross-appeal or, at the least, a notice of grounds for affirming the decision on grounds other than those relied upon below. This is the procedure contemplated, by analogy, under Rules 95 and 96 of the Court of Appeal Rules, 2022, and reflects a principle of general application in civil appellate practice: a respondent content merely to resist the appeal need do no more than file submissions, but one seeking additional or different relief must place the appellant on formal notice of that claim so that it may be met on equal footing. No cross-appeal or notice of that kind was filed here. It is not open to the Respondents to convert what is, in substance, a substantive claim for relief into a submission appended to their opposition to the Appellant’s appeal. 40. Third, and flowing from the foregoing, to accede to the Respondents’ invitation would occasion the very breach of the right to fair hearing under Article 50(1) of the Constitution that I have found the Tribunal to have committed in respect of the Reference itself. The Appellant’s submissions filed on 8th May 2026 make no reference whatsoever to the January 2026 notice, precisely because it was never put in issue in this appeal. A litigant is entitled to know the case he must meet and to have a fair opportunity to answer it before a court makes a finding adverse to him; he ought not to be exposed to a determination on so serious a question the lawful termination of his tenancy and his liability for mesne profits canvassed only in his opponent’s submissions and never his own. The Court of Appeal in **Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR** emphasised that the constitutional guarantee of a fair hearing requires that a party likely to be adversely affected by a decision be given adequate notice of the case against him and a genuine opportunity to respond. I decline to visit that same infirmity upon the Appellant at this stage. 41. Fourth, Cap 301 itself prescribes the forum and mechanism for a tenant aggrieved by a notice of termination: he may refer his grievance to the Tribunal by way of a Reference under Section 6 of the Act. Where a specific dispute-resolution mechanism is established by statute, a party and, with respect, a court ought ordinarily to resort to it before, or instead of, inviting a superior court to make first-instance findings on the same question. The Court of Appeal restated this exhaustion doctrine in **Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR,** holding that “it is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews.” The doctrine traces its Kenyan lineage to **Speaker of the National Assembly v Karume [1992] eKLR,** itself cited by the Respondents. It would be incongruous for this Court to pronounce, in the first instance, on the validity of the January 2026 notice in an appeal that does not concern it, when the very statute under which the notice was issued vests the Tribunal with primary jurisdiction to entertain a Reference against it a Reference the Respondents themselves confirm was never filed. 42. Fifth, the events of 30th March 2026 and the question of the status quo pending this appeal have already been the subject of a considered Ruling of this Court delivered on 30th April 2026, in which the Court weighed the competing positions of the parties on the lockout and the contempt application and made specific, practical orders including that the Appellant remain in possession without operating business without finally pronouncing on the validity of the January 2026 notice. To revisit that terrain in this Judgment, on the strength of one-sided submissions filed months later in a different application, risks either duplicating or, worse, cutting across a considered order of this same Court made after full argument on the very subject. 43. Sixth and finally, none of these matters is necessary for the disposal of this appeal, which turns entirely on the propriety of the Tribunal’s Ruling of 19th February 2026. Any pronouncement on the January 2026 notice would accordingly be obiter, and would risk prejudicing the fresh hearing I am about to direct, or any separate proceedings the parties may yet bring concerning that notice. The apex court’s admonition, though made in a different context, is apposite: a court’s judgment or ruling “is an edict that resolves a live issue of controversy, and is by no means an abstract pronouncement” **( See Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another [2016] eKLR).** For all the foregoing reasons, I decline to make any finding, express or implied, on the validity or effect of the notice dated 27th January 2026, the lawfulness of the lockout of 30th March 2026, or any consequent claim for mesne profits. 44. For the avoidance of doubt, this Judgment does not disturb the status quo directed by this Court in its Ruling of 30th April 2026, which shall remain in force pending the fresh hearing and determination of the Reference by the Tribunal, unless and until varied by the Tribunal or this Court on application by either party. **Final orders** 45. For the reasons set out above, I find that the Appeal succeeds substantially on the procedural and evidentiary grounds identified, and I make the following orders: **i) The Appeal be and is hereby allowed to the extent set out below.** **ii) The Ruling of the Business Premises Rent Tribunal delivered on 19th February 2026 in Tribunal Case No. E1385 of 2025 be and is hereby set aside in its entirety.** **iii) The Appellant’s Reference dated 2nd December 2025 be and is hereby reinstated and remitted to the Business Premises Rent Tribunal for hearing and determination on the merits, on all issues in dispute, including but not limited to:** **(a) the rent lawfully payable and whether the same is inclusive or exclusive of Value Added Tax;** **(b) the correct quantum of arrears, if any, after due credit for all sums paid by the Appellant, including the Kshs. 350,000/= paid pursuant to the Tribunal’s order of 18th December 2025;** **(c) the Appellant’s claimed set-off for hotel meals;** **(d) the lawfulness of the distress levied on 28th November 2025, including whether any proclaimed item was exempt from distress and whether Motor Vehicle Registration No. KCW 822W was lawfully proclaimed; and** **(e) the appropriate mode and terms of settlement of any arrears found due, having regard to Section 12 of Cap 301.** **iv) Any claim for Value Added Tax shall be proved by production of compliant tax invoices in accordance with Section 42 of the Value Added Tax Act, 2013, or other cogent evidence, failing which no VAT shall be awarded.** **v) The order for costs of Kshs. 40,000/= made against the Appellant by the Tribunal be and is hereby set aside; costs of the Reference before the Tribunal shall abide the outcome of the fresh hearing.** **vi) Pending the hearing and determination of the Reference by the Tribunal, the status quo directed by this Court in its Ruling of 30th April 2026 shall remain in force, without prejudice to the right of either party to apply for variation thereof before the appropriate forum.** **vii) This Judgment makes no finding on, and expressly reserves for determination in the appropriate forum, any question concerning the validity or effect of the notice dated 27th January 2026, the events of 30th March 2026, or any claim for mesne profits, none of these matters being properly before this Court in this appeal.** **viii) The costs of this Appeal shall be borne by the Respondents.** **JUDGMENT DELIVERED, DATED and SIGNED at KISUMU this 13th day of July, 2026.** **E.K. WABWOTO** **JUDGE** **In the presence of:** **Ms. Wambui holding brief for Mr. Nduati for the Appellant.** **Ms. Mbugua for the Respondent.** **Court Assistant; Joanne Omondi.**