https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4357

**** **REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI APPEALS DIVISION** **ELC APPEAL NO. E286 OF 2025** **PAULINE MWIKALI KIELEKO ....................................................…………….APPELLANT** **-VERSUS-** **ISABELLA NJERI ........................................................………………………RESPONDENT** **JUDGEMENT** **The Appeal** 1. By a Memorandum of Appeal dated 22nd December 2025, the Appellant, Pauline Mwikali Kieleko, appealed against the whole of the ruling and orders of the Business Premises Rent Tribunal at Nairobi delivered on 19th December 2025 in BPRT Case No. E1256 of 2025. The Appellant anchored the appeal on grounds 1 and 2 as set out on the face of the Memorandum of Appeal, namely that: 2. The Honourable Members of the Tribunal erred in law and in fact by entertaining, assuming jurisdiction over, and determining the Respondent’s application dated 24th November 2025, notwithstanding the undisputed fact that the landlord–tenant relationship between the parties had lawfully and conclusively ceased on 20th November 2025, thereby rendering the Tribunal devoid of jurisdiction to hear or determine the matter. 3. The Honourable Members of the Tribunal further erred in law and in fact by proceeding to issue interim, ex parte, and final orders on the Respondent’s application dated 24th November 2025, affecting the Appellant’s proprietary rights and the rights and interests of an innocent third party in respect of L.R. No. 7336/132, in the absence of jurisdiction, thereby rendering the entire proceedings null and void ab initio. **Notice of Motion** 1. The appeal was filed contemporaneously with a Notice of Motion dated 22nd December 2025 brought under **Article 50 of the Constitution of Kenya, 2010, Rules 15, 16 and 17 of the High Court (Organisation and Administration) (General) Rules, 2022, Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, Sections 13 and 16A of the Environment and Land Court Act, and all other enabling provisions of the law**. 2. The application sought orders, inter alia, that the application be certified urgent and heard ex parte in the first instance; that there be a stay of execution of the ruling and all consequential orders of the Business Premises Rent Tribunal delivered on 19th December 2025 in BPRT Case No. E1256 of 2025 pending the hearing and determination of the appeal; that the Respondent, her agents or servants be restrained from interfering with the Appellant’s proprietary rights over L.R. No. 7336/132, Nairobi and from enforcing orders emanating from the impugned Tribunal proceedings; and that costs of the application be provided for. 3. The application was premised on the grounds appearing on its face, namely that the Appellant had lodged a competent appeal challenging the jurisdiction of the Business Premises Rent Tribunal, which jurisdiction had allegedly ceased as at 24th November 2025 when the Respondent lodged the impugned application before the Tribunal; that the Tribunal erred in law by entertaining and determining an application filed after the landlord–tenant relationship between the parties had conclusively ceased contrary to **Sections 11 and 12 of Cap 301**; that the Tribunal acted ultra vires and in excess of statutory authority by issuing interim, ex parte and final orders affecting proprietary rights without legal mandate; that the appeal raised weighty and arguable jurisdictional issues with overwhelming prospects of success; and that unless stay was granted, the Respondent would continue relying on allegedly void orders thereby rendering the appeal nugatory while exposing the Appellant to substantial and irreparable loss. 4. The application was further supported by the Supporting Affidavit of Pauline Mwikali Kieleko sworn on 22nd December 2025, wherein she averred that she was the registered proprietor of L.R. No. 7336/132, Nairobi and was aggrieved by the ruling and orders of the Tribunal delivered on 19th December 2025. She deponed that the landlord–tenant relationship between herself and the Respondent had been lawfully terminated following persistent rent default, that eviction orders had been issued on 14th November 2025, and that vacant possession had been lawfully recovered on 20th November 2025. 5. She further averred that immediately upon recovery of possession, she entered into a tenancy agreement with Mr. Andrew Maru on 22nd November 2025, and that by the time the Respondent filed the impugned application on 24th November 2025, no landlord–tenant relationship subsisted and the Tribunal’s jurisdiction had been extinguished. She additionally deponed that unless stay orders were granted, the Respondent would continue relying on void orders, she risked contempt proceedings founded on illegal orders, the rights of an innocent third-party tenant would be prejudiced, and she would continue suffering financial prejudice arising from a monthly mortgage obligation of Kshs. 198,000 over the suit property. **The Response:** **Replying Affidavit** 1. In response to the application, the Respondent, Isabella Njeri, filed a Replying Affidavit sworn on 22nd January 2026 wherein she deponed that the Appellant’s application was fundamentally defective, misleading, and founded on deliberate suppression, distortion, and concealment of material facts calculated to mislead the Court into issuing orders prejudicial to her lawful occupation and proprietary rights over L.R. No. 7336/132, Karen, which she described as her matrimonial home. She further averred that the Appellant’s conduct amounted to forum shopping and abuse of the court process by oscillating between the Tribunal and the Court while selectively concealing the existence, status, and determinations of parallel proceedings in order to obtain favourable orders. 2. The Respondent further deponed that she was the widow of the late George Gudler Towey, whom she married under Kikuyu Customary Law on or about 3rd July 2010 before solemnizing the marriage on 11th December 2010 under the African Christian Marriage and Divorce Act. She averred that during the subsistence of the marriage, they jointly acquired the suit property on or about 30th September 2010, which property became their matrimonial home where she had resided continuously with their son for over fifteen years. 3. She stated that following the death of her husband on 20th January 2024, the Appellant served her with a statutory eviction notice dated 5th March 2024 claiming ownership of the suit property. Upon conducting an official search, she allegedly discovered that the property had purportedly been transferred to the Appellant on 8th November 2018 without her spousal consent, contrary to the provisions of the **Matrimonial Property Act,** and that the legality and validity of the transfer formed part of the issues pending determination before the High Court in HCFCC/E033/2025. 4. The Respondent additionally averred that prior to the Tribunal proceedings, she had instituted ELC Case No. E127 of 2024 seeking declaratory and injunctive reliefs over the suit property, which suit was later struck out on 4th November 2025 for want of jurisdiction, following which she filed HCFCC/E033/2025 on 7th November 2025. She deponed that the High Court subsequently issued conservatory and injunctive orders on 11th November 2025 restraining the Appellant from evicting her or interfering with her occupation of the suit property, which orders remained valid and subsisting. 5. According to the Respondent, notwithstanding those orders, the Appellant proceeded to institute Tribunal Case No. E1256 of 2025 falsely alleging the existence of a tenancy relationship and obtained ex parte eviction orders on 14th November 2025, which led to her forceful eviction from the suit property on 20th November 2025. She further averred that upon hearing the parties, the Tribunal in its ruling delivered on 19th December 2025 found that no controlled tenancy existed, that the suit property was residential and matrimonial in nature, and consequently set aside the ex parte orders previously obtained by the Appellant. Notice of Preliminary Objection 1. In further response to the application, the Respondent, Isabella Njeri, filed a Notice of Preliminary Objection dated 23rd January 2026 contending that the Appellant’s application was fatally defective for having been founded on deliberate concealment and non-disclosure of material facts relating to prior and concurrent proceedings as well as subsisting court orders touching on the suit property. 2. The Respondent stated that there existed prior proceedings in ELC Case No. E127 of 2024, Isabella Njeri Wachira v Pauline Mwikali Kieleko & 3 Others, wherein interim injunctive orders had been issued on 8th April 2024 pending hearing of the application, before the suit was subsequently struck out on 4th November 2025 for want of jurisdiction, the Court having held that matrimonial property and charge disputes fell within the jurisdiction of the High Court. 3. The Respondent further contended that following the striking out of the ELC proceedings, she instituted HCFCC No. E033 of 2025, Isabella Njeri Wachira Vs Pauline Mwikali Kieleko & 2 Others on 7th November 2025, wherein she challenged the Appellant’s alleged purchase of the suit property from her deceased husband and asserted proprietary rights over the same. 4. She further stated that on 11th November 2025, the High Court issued conservatory and injunctive orders restraining the Appellant from evicting her, interfering with her occupation, or otherwise dealing with the suit property, which orders were allegedly served upon the Appellant via email on 13th November 2025 and physically on 19th November 2025, and which remained valid, subsisting, and binding. 5. The Respondent additionally contended that notwithstanding the subsisting High Court orders, the Appellant proceeded to institute Tribunal Case No. E1256 of 2025 and obtained ex parte eviction orders on 14th November 2025, which orders were subsequently vacated and set aside by the Tribunal’s ruling delivered on 19th December 2025, thereby precipitating the present appeal. 6. The Respondent further stated that there existed ongoing succession proceedings, namely Succession Cause No. E305 of 2024, In the Matter of the Estate of George Gudler Towey (Deceased) and HCFP&A No. E0079 of 2024 at Eldoret concerning the deceased’s estate. It was therefore the Respondent’s position that the Appellant had deliberately failed to disclose the foregoing proceedings and subsisting orders to the Court, thereby obtaining undeserved ex parte orders through material non-disclosure, and consequently urged the Court to discharge the ex parte orders and strike out the Appellant’s Motion. **Supplementary Affidavits:** 1. In further support of the Notice of Motion Application dated 22nd December 2025, the Appellant, Pauline Mwikali Kieleko, filed a Supplementary Affidavit sworn on 27th January 2026 wherein she denied having been properly served with the pleadings and conservatory orders issued in HCFCC No. E033 of 2025, contending that the alleged service upon one “Salome Akoth,” described as her personal assistant, was fictitious as she neither knew nor employed such a person. 2. She further averred that despite the existence of other proceedings filed by the Respondent, she retained a constitutional right to institute the present appeal and maintained that she was unaware of the orders allegedly issued on 11th November 2025 at the material time. The Appellant additionally stated that the succession proceedings cited by the Respondent had no nexus with the suit property and were therefore irrelevant to the present proceedings. 3. The Appellant further deponed that she lawfully acquired the suit property from the late George Gudler Towey pursuant to a sale agreement executed on 28th August 2018 for a purchase price of Kshs. 55,000,000, following due diligence, valuation, execution of transfer and charge instruments, and registration of the transfer in her favour. 4. She averred that the deceased had executed a statutory declaration on 11th October 2018 stating that he was unmarried and that no spousal consent was required for the transaction. She further stated that the suit premises had historically been occupied by tenants and constituted business premises, that the eviction orders issued by the Tribunal on 14th November 2025 were lawfully obtained after proper service upon the Respondent, and that the Respondent failed to challenge the termination notice issued to her. 5. She additionally averred that after the eviction, the suit premises were lawfully occupied by a new tenant, Andrew Maru, who had since instituted LCLJR/E003/2026, Andrew Maru Vs BPRT Nairobi & 2 Others, challenging the Tribunal’s restoration orders. The Appellant contended that despite finding that no landlord–tenant relationship existed between the parties, the Tribunal nevertheless proceeded to issue restoration orders in favour of the Respondent, thereby adversely affecting the rights of the new tenant who had not been joined to the proceedings. She further stated that lifting the stay orders would expose her and the said tenant to grave prejudice, including loss of rental income used to service the mortgage facility charged over the suit property. 6. Subsequently, the Respondent, Isabella Njeri, filed a Supplementary Affidavit in response to the Appellant’s Supplementary Affidavit sworn on 29th January 2026. She averred that the Appellant’s supplementary affidavit had been served upon her advocates outside normal office hours on 28th January 2026, barely hours before the hearing scheduled for 29th January 2026, which she described as an attempt to disrupt the proceedings. 7. The Respondent reiterated that her marriage to the late George Gudler Towey was valid and subsisted until his death, annexing affidavits sworn by Catholic priests who allegedly solemnized the marriage. She further maintained that issues concerning ownership of, transfer of, spousal consent relating to, and proprietary interests in L.R. No. 7336/132 were directly and substantially in issue before the High Court in HCFCC No. E033 of 2025, and were therefore sub judice within the meaning of **Section 6 of the Civil Procedure Act**. 8. The Respondent further deponed that the signatures appearing on the alleged sale agreement, transfer instruments, and statutory declaration relied upon by the Appellant were contested as forgeries and that a forensic examiner’s report filed in ELC Case No. E127 of 2024 and HCFCC No. E033 of 2025 allegedly confirmed that the impugned signatures did not match the known specimen signatures of the deceased. 9. She additionally denied having been served with the Tribunal pleadings, eviction orders, or notice to vacate, maintaining that she only became aware of the Tribunal proceedings upon inquiries at Karen Police Station on the date of her eviction on 20th November 2025. The Respondent further contended that the Appellant had taken contradictory positions by alternately describing the suit property as business premises and as residential property, and maintained that the alleged tenancy created in favour of Andrew Maruwas unlawful, having arisen after her eviction and in disregard of the subsisting High Court orders issued in HCFCC No. E033 of 2025. **Issues for determination** 1. The parties subsequently agreed that the Preliminary Objection dated 23rd January 2026, the Notice of Motion Application dated 22nd December 2025, and the Appeal be heard concurrently by way of written submissions. Pursuant thereto, both parties filed and exchanged their respective submissions together with lists and bundles of authorities in support of their respective positions. Thereafter, Counsel appearing for the parties highlighted the said submissions before this Court on 20th April 2026. 2. This Court has carefully considered the Memorandum of Appeal, the Notice of Motion Application dated 22nd December 2025, the Preliminary Objection dated 23rd January 2026, the affidavits filed by the respective parties in support of and in opposition thereto, the written submissions on record, the authorities cited by Counsel, as well as the oral highlights made before the Court on 20th April 2026. 3. In the Court’s view, the following issues arise for determination: 4. Whether the Preliminary Objection dated 23rd January 2026 is merited. 5. Whether the Business Premises Rent Tribunal had jurisdiction to entertain the proceedings and issue the impugned orders in BPRT Case No. E1256 of 2025. **Analysis and Determination** **ISSUE NO :1 Whether the Preliminary Objection dated 23rd January 2026 is merited** 1. On the first issue, the Court must determine whether the Preliminary Objection dated23rd January 2026 raises pure points of law capable of disposing of the matter at a preliminary stage. The Respondent’s objection is predicated on allegations that the Appellant deliberately concealed material facts, failed to disclose prior and concurrent proceedings, and obtained ex parte orders despite the existence of subsisting High Court orders in HCFCC No. E033 of 2025. 2. The Respondent further contends that the Appellant improperly invoked the jurisdiction of the Tribunal while aware of pending proceedings touching on the suit property, namely **ELC Case No. E127 of 2024**, **HCFCC No. E033 of 2025**, **Succession Cause No. E305 of 2024**, and **HCFP&A No. E079 of 2024**. 3. The law relating to Preliminary Objections is well settled. A Preliminary Objection must be on a pure point of law. It helps if the point of law is precisely, briefly and clearly defined in the notice of Preliminary Objection. In **Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd (1969) EA 696,** the locus classicus on Preliminary Objections in this region, Law JA stated: ***“****So far as I’m aware, 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.”* 1. A careful examination of the Respondent’s Preliminary Objection reveals that the same is substantially founded on contested factual matters requiring evidentiary interrogation by the Court. For instance, the Respondent alleges that the Appellant was aware of and had been duly served with the conservatory orders issued on 11th November 2025 in HCFCC No. E033 of 2025, while the Appellant in her Supplementary Affidavit sworn on 27th January 2026 expressly disputes such service and denies knowing one “Salome Akoth,” the person alleged to have received the documents on her behalf. 2. Equally contested are the allegations regarding the nature of the suit property, with the Respondent maintaining that the premises constitute matrimonial and residential property while the Appellant insists that the same historically constituted business premises occupied by tenants. Further, the Respondent alleges that the transfer instruments and statutory declaration relied upon by the Appellant are forgeries and relies on a forensic examiner’s report allegedly filed in prior proceedings, whereas the Appellant maintains that the transfer process was lawful, valid, and supported by due diligence, valuation reports, professional undertakings, payment records, and a statutory declaration executed by the deceased. 3. The Court also notes that the objection invites determination of whether there was deliberate concealment of material facts, whether the Tribunal proceedings were instituted in abuse of court process, whether the Appellant lawfully obtained the eviction orders issued on 14th November 2025, whether the Respondent was served with the Tribunal pleadings and notices, and whether the subsequent tenancy created in favour of Andrew Maru was lawful. These are not matters capable of determination as pure points of law. They call for evaluation of affidavit evidence, testing of the credibility of the rival depositions, examination of pleadings and proceedings in other courts, and resolution of disputed factual positions taken by the parties. 4. In the premises, the Court finds that the issues raised in the Preliminary Objection are inextricably intertwined with contested questions of fact which cannot be resolved without a substantive interrogation of evidence. Consequently, the Preliminary Objection does not satisfy the threshold set out in **Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd (1969) EA 696** and is therefore not sustainable as a true preliminary objection in law. **Issue No 2: Whether the Business Premises Rent Tribunal had jurisdiction to entertain the proceedings and issue the impugned orders in BPRT Case No. E1256 of 2025.** 1. On the second issue, namely whether the Business Premises Rent Tribunal had jurisdiction to entertain the dispute and issue the impugned orders in **BPRT Case No. E1256 of 2025**, this Court is alive to its duty as a first appellate court as set out in **Selle & Another Vs Associated Motor Boat Co. Ltd & Others (1968) EA 123** and reiterated in **China Zhongxing Construction Company Ltd Vs Ann Akuru Sophia (2020) eKLR,** namely, to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that the trial tribunal had the advantage of seeing and hearing the parties. Guided by those principles, this Court has carefully reconsidered the pleadings, affidavits, annexures, rival submissions, proceedings, and the impugned ruling delivered on 19th December 2025. 2. The Appellant’s central grievance on appeal is that the Tribunal lacked jurisdiction once the landlord–tenant relationship allegedly ceased on 20th November 2025 following execution of the eviction orders and recovery of vacant possession. The Appellant further contends that upon finding that no controlled tenancy existed and that the premises constituted residential property, the Tribunal became functus officio and could not proceed to issue restorative orders in favour of the Respondent. 3. Jurisdiction is everything**.** Without it, a court or tribunal must down its tools. The principles in the celebrated case of **Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] EA 696** and the decision of the Supreme Court in **Samuel Kamau Macharia & Another Vs Kenya Commercial Bank Ltd & 2 Others [2012] eKLR** make it clear that **jurisdiction flows from the Constitution or statute** and cannot be expanded through judicial innovation or equitable considerations. 4. Upon re-evaluating the record, this Court finds that the material placed before the Tribunal was sufficient to demonstrate that the Tribunal itself proceeded on the basis that no controlled tenancy existed between the parties and that the dispute had ceased to fall within the ambit of Cap 301. 5. Having found that no controlled tenancy existed between the parties, the Tribunal expressly concluded that the dispute did not fall within the ambit of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. That finding ought to have marked the end of the Tribunal’s involvement in the matter. Once the jurisdictional foundation prescribed by statute ceased to exist, the Tribunal could not assume a broader supervisory jurisdiction over disputes concerning ownership, occupation, possession, or enforcement of orders**.** 6. This Court respectfully disagrees with the Tribunal’s conclusion that it retained a residual jurisdiction to restore possession and determine consequential rights after finding that no controlled tenancy existed. **Section 12(1)(i) of Cap 301** empowers the Tribunal to vary or rescind orders made under the Act. However, that provision cannot be interpreted as creating an independent source of jurisdiction where the substantive jurisdiction conferred by the Act has already been found not to exist. 7. The Tribunal’s concern regarding alleged non-disclosure of parallel proceedings and existing court orders may well have been legitimate. However, such concerns could not confer jurisdiction where none existed. Jurisdiction cannot arise from allegations of misconduct, abuse of process, or perceived injustice**.** Once the Tribunal determined that the dispute fell outside Cap 301, any further orders affecting possession, occupation, or proprietary interests in the suit property were made without jurisdiction. 8. Consequently, this Court finds that the Tribunal exceeded its statutory mandate when it issued the consequential orders contained in the ruling delivered on **19th December 2025**. **Final Disposition** 1. Consequently, I issue the following orders: – 2. The Preliminary Objection dated **23rd January 2026** is hereby dismissed. 3. The Appeal is hereby allowed and the ruling and orders of the Business Premises Rent Tribunal delivered on **19th December 2025** in BPRT **Case No. E1256 of 2025** are hereby set aside. 4. The Respondent shall bear the costs of the appeal and the application.Top of FormBottom of Form **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **15th** day of **June, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Judgment delivered in the presence of: -** **Mr. Murithi** for the Appellant **Mr. Ngatia** for Respondent **Philomena W.** Court Assistant