https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3647

Rupas Gift Centre Limited & another v Government of the Republic of Uganda & another (Land Case E493 of 2025) [2026] KEELC 3647 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KEELC 3647 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E493 of 2025 MN Kullow, J June 15, 2026 Between Rupas Gift Centre Limited 1st Plaintiff Eastern Watch Co Limited 2nd Plaintiff and The Government Of The Republic Of Uganda 1st Defendant Regent Management Limited 2nd Defendant Ruling 1.By a Notice of Preliminary Objection dated 31st March 2026, the 1st and 2nd Respondents/Objectors sought the striking out of the suit and the application herein dated 23rd September on the grounds that:a.The entire suit and application are incompetent by virtue of the doctrine of sovereign immunity governed by Article 31 of the Vienna Convention on Diplomatic Relations, 1961, which is ratified in Kenya pursuant to Article 2(5) and (6) of the Constitution; andb.Without prejudice to the foregoing, this Court lacks jurisdiction to entertain the dispute as the tenancy relationship between the parties falls within the purview of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 of the Laws of Kenya. 2.The Plaintiffs opposed the Preliminary Objection through Grounds of Opposition dated 6th May 2026. In response to the objection founded on sovereign immunity, they contended that the dispute concerns private immovable property, namely Uganda House, a commercial building situated in Nairobi within the Republic of Kenya. According to the Plaintiffs, the dispute relates to rights and obligations arising from that property and therefore falls outside the sphere of activities ordinarily protected by diplomatic immunity. 3.The Plaintiffs further averred that Uganda House is a commercial property which the 1st and 2nd Respondent’s lease to tenants in exchange for rent. They maintained that the property is not used for the purposes of a diplomatic mission and pointed out that the Respondents had themselves annexed Lease Agreements to their Replying Affidavit, thereby demonstrating the commercial nature of the relationship between the parties. On that basis, the Plaintiffs asserted that diplomatic immunity does not extend to private commercial transactions relating to immovable property. 4.In response to the jurisdictional objection, the Plaintiffs maintained that this Court is properly seized of the dispute and that neither the Environment and Land Court Act, the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, nor the Constitution of Kenya, 2010, bars this Court from hearing and determining the matter. They further contended that the dispute does not concern the termination of a tenancy within the meaning of Section 7 of Cap 301 and that the notices issued by the 1st and 2nd Respondents on 19th September 2025 and 14th February 2026 gave rise to a cause of action that does not fall within the ambit of Section 12 of the Act. Submissions 5.Pursuant to the directions of the Court, the Preliminary Objection was canvassed by way of written submissions. In their submissions dated 29th May 2026, the 1st and 2nd Respondents identified two issues for determination, namely: whether the Plaintiffs’ suit is incompetent by virtue of the doctrine of sovereign immunity, and whether this Court lacks original jurisdiction over the dispute by reason of the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301. The Respondents submitted that the Preliminary Objection raises pure points of law capable of disposing of the entire suit and that the issues arise from the Plaintiffs’ own pleadings. 6.On the question of sovereign immunity, the Respondents submitted that the 1st Respondent, being the Government of the Republic of Uganda, enjoys immunity from civil proceedings by virtue of Article 31 of the Vienna Convention on Diplomatic Relations, 1961, as adopted into Kenyan law through the Privileges and Immunities Act, Cap 179 and Articles 2(5) and 2(6) of the Constitution. 7.They argued that the suit does not fall within any of the exceptions to diplomatic immunity under Article 31 and that the impugned notices requiring tenants to vacate Uganda House for renovations were issued in furtherance of the 1st Respondent’s official functions. In support of that position, reliance was placed on Githongo & 3 Others (Administrators of the Estate of Joseph Muiruri Githongo – Deceased) Vs Government of the United States of America [2023] KEELC 370 (KLR), Attorney General & 2 Others Vs Ndii & 79 Others; Dixon & 7 Others (Amicus Curiae) [2022] KESC 8 (KLR), Kandie Vs B & Another [2017] KESC 13 (KLR) and Republic of Kenya All War Heroes & Others Vs Attorney General & Others [2017] KEHC 8234 (KLR). 8.The Respondents further contended that no suit could be maintained against the 2nd Respondent since it had been sued solely as an agent of a disclosed principal, namely the Government of Uganda, and cited Peter Kivolonzi Vs Alice Wanjiku Kariuki & Another [2017] eKLR in support of that proposition. 9.Regarding jurisdiction, the Respondents submitted that the Plaintiffs are controlled tenants within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, and that disputes arising from notices issued to such tenants fall within the original jurisdiction of the Business Premises Rent Tribunal. They argued that the cause of action is anchored on notices requiring the tenants to vacate the premises and that issues relating to termination, alteration of tenancy terms and recovery of possession are matters expressly reserved for determination by the Tribunal under Sections 4 and 12 of the Act. 10.To buttress that argument, the Respondents relied on Ola Energy Kenya Limited Vs Rashid Opondo Otieno t/a Kisumu Breakdown Services Limited [2021] KEELC 60 (KLR) and Githiomi Vs Maina [2025] KECA 175 (KLR), and urged the Court to find that it lacks original jurisdiction to entertain the dispute and to strike out the suit with costs. 11.The Plaintiffs also filed written submissions dated 15th May 2026 in opposition to the Preliminary Objection. Citing Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd (1969) EA 696 and Kahara Vs M’Itobi & 7 Others (Environment and Land Case E012 of 2023) [2025] KEELC 5700 (KLR), they submitted that a preliminary objection must raise a pure point of law capable of disposing of a suit without the need for ascertainment of contested facts. 12.The Plaintiffs contended that the objections raised by the Respondents did not meet that threshold and urged the Court to assume jurisdiction and determine the dispute on its merits. 13.On the issue of sovereign immunity, the Plaintiffs submitted that the suit concerns Uganda House, a commercial property situated in Nairobi and owned by the Government of the Republic of Uganda, which is leased to tenants for rent. They argued that the dispute arose from notices dated 19th September 2025 and 14th February 2026 requiring tenants to vacate the premises to facilitate renovation works. 14.Relying on Article 31(1)(a) and (c) of the Vienna Convention on Diplomatic Relations, 1961, the Plaintiffs contended that diplomatic immunity does not extend to actions relating to private immovable property or commercial activities undertaken outside official diplomatic functions. They maintained that Uganda House is a commercial property and not part of the premises used for diplomatic missions, and therefore the dispute falls within the exceptions to diplomatic immunity. 15.Regarding the question of jurisdiction, the Plaintiffs submitted that the dispute does not concern termination of tenancy, payment of rent, or eviction, but rather whether the tenants should continue occupying the premises while renovation works are undertaken. They argued that the notices issued by the Respondents created a unique cause of action relating to the occupation and use of land, thereby bringing the dispute within the jurisdiction of this Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 16.The Plaintiffs further relied on a consent recorded in Civil Appeal No. 255 of 2017, under which renovations to Uganda House had previously been undertaken while tenants remained in occupation, and urged the Court to find that the dispute was properly before it and to dismiss the Preliminary Objection with costs. Analysis And Determination 17.The Court has carefully read and considered the Notice of Preliminary Objection dated 31st March 2026, the Plaintiffs’ Grounds of Opposition, the pleadings on record and the rival written submissions filed by the parties. The main issues for determination are:a.Whether the Preliminary Objection meets the threshold of a proper preliminary objection; andb.If the answer to (a) is in the affirmative, whether the Preliminary Objection is merited. 18.In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, a preliminary objection was described as a point of law which has been pleaded, or which arises by clear implication from the pleadings, and which, if argued as a preliminary point, may dispose of the suit. It was further stated that a preliminary objection is argued on the assumption that all the facts pleaded by the other side are correct and cannot be raised where any fact has to be ascertained or where what is sought is the exercise of judicial discretion. 19.The same principle was restated in Republic Vs Eldoret Water & Sanitation Company Ltd Exparte Booker Onyango & 2 Others (2007) eKLR, where the Court held that anything purporting to be a preliminary objection must not deal with disputed facts and must not derive its foundation from factual information which stands to be tested by rules of evidence. Therefore, a preliminary objection must arise from the pleadings, must raise a pure point of law and must be capable of disposing of the suit if successful. 20.In the present matter, the Respondents’ objection is premised on two grounds. First, that the suit is barred by the doctrine of sovereign immunity under Article 31 of the Vienna Convention on Diplomatic Relations, 1961. Secondly, that this Court lacks jurisdiction because the dispute allegedly falls within the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301. 21.Both grounds touch on jurisdiction and the competence of the suit. Jurisdiction is a pure point of law which may properly be raised by way of a preliminary objection. I therefore find and hold that the Notice of Preliminary Objection dated 31st March 2026 meets the threshold of a proper preliminary objection and is validly before the Court. The Court shall now consider whether the same is merited. 22.On the first ground, the Respondents contend that the 1st Respondent, being the Government of the Republic of Uganda, enjoys sovereign immunity and cannot be subjected to the jurisdiction of this Court. It is not disputed that the 1st Respondent is a foreign sovereign State. It is also not disputed that the property known as Uganda House is situated in Nairobi within the Republic of Kenya and that the Plaintiffs occupy portions of the said premises as tenants. 23.Article 31 of the Vienna Convention on Diplomatic Relations, 1961 grants immunity from civil and administrative jurisdiction. However, that immunity is not absolute. Article 31(1)(a) excludes from such immunity real actions relating to private immovable property situated in the receiving State, unless the property is held on behalf of the sending State for purposes of the mission. Article 31(1)(c) also excludes actions relating to professional or commercial activities exercised in the receiving State outside official diplomatic functions. 24.The question before the Court is therefore whether the dispute herein relates to the exercise of sovereign or diplomatic functions, or whether it falls within the exceptions under Article 31. From the pleadings, the Plaintiffs’ claim arises from notices issued by the Respondents requiring them to vacate portions of Uganda House to allow renovation works. The Plaintiffs challenge those notices and seek to remain in occupation of the premises during the intended renovations. 25.In my view, the dispute as framed does not concern the conduct of diplomatic relations, diplomatic communication, consular functions, or any sovereign act of the 1st Respondent. It concerns occupation of immovable property situated within Kenya and rights arising from a landlord-tenant relationship. The leasing of portions of Uganda House to tenants for rent is a commercial activity distinct from the diplomatic functions protected under the Vienna Convention. 26.Consequently, I find that the Respondents have not demonstrated that the present suit is barred by sovereign immunity. The dispute falls within the exceptions contemplated under Article 31(1)(a) and Article 31(1)(c) of the Vienna Convention on Diplomatic Relations, 1961. The first limb of the Preliminary Objection therefore fails. 27.The second ground of objection is that this Court lacks jurisdiction because the Plaintiffs are protected tenants under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301. The Respondents argue that the dispute ought to be heard by the Business Premises Rent Tribunal. The Plaintiffs, on the other hand, contend that this Court has jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 28.Article 162(2)(b) of the Constitution establishes a Court with the status of the High Court to hear and determine disputes relating to the environment and the use, occupation of, and title to land. Pursuant to that Article, Section 13 of the Environment and Land Court Act confers upon this Court jurisdiction to hear and determine disputes relating to, among others, land use, occupation, title, tenure, contracts and other instruments granting enforceable interests in land. 29.However, where Parliament has created a specialized statutory mechanism for resolution of a particular class of disputes, the Court must consider whether the dispute falls within that special regime. In this case, the Respondents rely on Cap 301. Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 defines a controlled tenancy as a tenancy of a shop, hotel or catering establishment which has not been reduced into writing, or which has been reduced into writing but is for a period not exceeding five years, or contains provision for termination otherwise than for breach of covenant within five years from commencement. 30.The proviso to Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 is, however, material. It states that no tenancy to which the Government, the Community or a local authority is a party, whether as landlord or as tenant, shall be a controlled tenancy. This proviso expressly removes such tenancies from the category of controlled tenancies governed by Cap 301. 31.The Tribunal established under Section 11 of Cap 301 exercises only the jurisdiction conferred upon it by the Act. Section 12 gives the Tribunal power to determine whether a tenancy is a controlled tenancy, to determine or vary rent payable under a controlled tenancy, to make orders for recovery of possession, to investigate complaints relating to controlled tenancies and to make such orders as it deems fit. It follows that the Tribunal’s jurisdiction is tied to the existence of a controlled tenancy. 32.In the present case, the 1st Respondent is the Government of the Republic of Uganda and is pleaded as the proprietor and landlord of Uganda House. The tenancy relationship forming the basis of the dispute is therefore one in which a Government is a party as landlord. In view of the clear proviso to Section 2 of Cap 301, such tenancy cannot be treated as a controlled tenancy under the Act. 33.The Respondents cannot therefore rely on Cap 301 to oust the jurisdiction of this Court while the same Act expressly excludes tenancies to which the Government is a party from the definition of controlled tenancies. Once the tenancy falls outside the definition of a controlled tenancy, the jurisdiction of the Business Premises Rent Tribunal under Sections 11 and 12 of Cap 301 cannot be invoked. I therefore find that the dispute is not one reserved for the Business Premises Rent Tribunal under Cap 301. The second limb of the Preliminary Objection equally fails. 34.The upshot of the foregoing is that the Notice of Preliminary Objection dated 31st March 2026 is not merited. The plea of sovereign immunity fails because the dispute falls within the exceptions contemplated under Article 31 of the Vienna Convention on Diplomatic Relations, 1961. The objection based on Cap 301 also fails because the tenancy in question is expressly excluded from the definition of a controlled tenancy under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. 35.Accordingly, the Notice of Preliminary Objection dated 31st March 2026 is hereby dismissed with costs to the Plaintiffs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAY OF JUNE, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Mofokiyo____ for the Plaintiffs/ApplicantsMs. Obiero ____ for the RespondentsPhilomena W.____ Court Assistant