https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4530

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELCL APPEAL NO. E109 OF 2025** **SAMUEL IRUNGU MWANGI**.......................................................................**APPELLANT** **-VERSUS-** **JAMES MWANGI MUNGAI**.................................................................**1ST RESPONDENT** **MARY MUTURA**...............................................................................**2ND RESPONDENT** **MUCHOKI MURIGI**...........................................................................**3RD RESPONDENT** **JUDGEMENT** **The Appeal** 1. Vide a Memorandum of Appeal dated **19th June 2025** the Appellant, **Samuel Irungu Mwangi**, filed an Appeal against **James Mwangi Mungai (1st Respondent), Mary Mutura (2nd Respondent), and Muchoki Murigi (3rd Respondent)**, challenging the entire ruling of the Business Premises Rent Tribunal (Hon. Gad Chemoiyai) delivered on **4th June 2025** in Tribunal Case No. E224 of 2025. The appeal was founded on the following grounds: 2. **THAT** the Tribunal misdirected itself in concluding that no Landlord Tenant relationship existed between the Appellant and the Respondents. 3. **THAT** the Tribunal erred in law and fact by finding that it had no jurisdiction to hear the reference and issue any orders under Section 12 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, given that the Appellant was the Respondents' Tenant. 4. **THAT** the Tribunal erred in law and fact by failing to provide the Appellant with the inspector's report before making a ruling, despite the Appellant's express request. 5. **THAT** the Tribunal erred in law and fact by condemning the Appellant to pay costs. 6. The Appellant prayed that the appeal be allowed; that the ruling dated **4th June 2025** and all consequential orders be set aside; that the costs of the appeal and the proceedings before the Tribunal be awarded to the Appellant; and that this Honourable Court grant such further orders as it deems just and fit. 7. Simultaneously with the Memorandum of Appeal, the Appellant filed a Notice of Motion dated **27th April 2026** seeking, inter alia, an order for stay of execution of the decree issued by the Business Premises Rent Tribunal pending the hearing and determination of the appeal. When the matter came up for directions on **15th June 2026**, counsel for the Appellant informed the Court that the Appellant wished to withdraw the said application. The application was accordingly marked as withdrawn. The Court thereafter directed that the appeal be canvassed and disposed of by way of written submissions. **Submissions** 1. **Appellant Submissions** 2. **Vide written submissions dated 29th May 2026**, the Appellant submitted that the Tribunal erred in striking out BPRT Case No. E224 of 2025 for want of jurisdiction after relying on an inspection report which allegedly concluded that the Appellant was not in occupation of the suit premises. 3. Counsel contended that the Tribunal misdirected itself in finding that no landlord–tenant relationship existed between the parties, maintaining that the Appellant remained a tenant of the Respondents' premises at all material times and that the inspection report ought not to have been relied upon before being availed to the Appellant. 4. The Appellant further submitted that neither he nor his advocate was furnished with the inspection report despite requesting for it, thereby denying him the opportunity to challenge its contents before the Tribunal rendered its ruling. It was argued that this violated **Section 12(3) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act**, which requires that an inspection report be communicated to the landlord or tenant, or both. Counsel maintained that the Tribunal's reliance on the undisclosed report infringed the Appellant's right to a fair hearing. 5. In support of the appeal, the Appellant relied on **Mbaki & Others v. Macharia & Another [2005] 2 EA 206**, **Onyango v. Attorney General [1986–1989] EA 456**, and **Gusii Mwalimu Sacco Limited v Osano [2025] KEBPRT 154 (KLR)** for the proposition that a party must be afforded an opportunity to be heard and to comment on an inspection report before it can be relied upon by the Tribunal. Counsel accordingly urged the Court to allow the appeal and set aside the ruling of the Tribunal. 6. **2nd Respondent Submissions** 7. **Vide written submissions dated 19th June 2026**, the 2nd Respondent identified two issues for determination, namely whether the Appellant had been denied access to the Rent Inspector's report before the Tribunal delivered its ruling and who should bear the costs of the appeal. On the first issue, the 2nd Respondent submitted that the Appellant's complaint was unfounded as all parties participated in the inspection of the suit premises on 13th May 2025 and were informed during the proceedings of 19th May 2025 that the inspection report had been prepared, filed in court and its contents disclosed. It was contended that the Tribunal further directed that the matter would come up on 4th June 2025 for further directions, thereby affording the parties sufficient time to peruse the court file, obtain a copy of the report and file any response deemed necessary. 8. The 2nd Respondent further submitted that the Appellant failed to exercise due diligence by not obtaining the report despite being aware of its existence and availability. Reliance was placed on the equitable maxim **Vigilantibus non dormientibus jura subveniunt**, meaning that equity aids the vigilant and not those who sleep on their rights. 9. Counsel argued that the Tribunal had done all that was required by notifying the parties that the report had been filed and that any failure by the Appellant to access or respond to it was attributable solely to his own inaction. It was further submitted that the findings contained in the report corroborated the Tribunal's conclusion that the Appellant was not in occupation of the premises notwithstanding the interim injunctive orders that had earlier been granted. 10. On the issue of costs, the 2nd Respondent relied on **Section 27(1) of the Civil Procedure Act**, submitting that costs are in the discretion of the court but ordinarily follow the event unless sufficient reason exists to order otherwise. Counsel also relied on **Kuloba, Judicial Hints on Civil Procedure**, wherein it is stated that the purpose of an award of costs is to reimburse a successful litigant for expenses reasonably incurred in litigation rather than to punish the unsuccessful party. On that basis, the 2nd Respondent urged the Court to dismiss the appeal with costs to the 2nd Respondent. **Issue for Determination** 1. Having considered the Memorandum of Appeal, the Record of Appeal and the parties' respective submissions, the Court is of the considered view that the appeal raises one issue for determination: **Whether the Business Premises Rent Tribunal erred in law and in fact in finding that no landlord–tenant relationship existed between the Appellant and the Respondents and consequently declining jurisdiction to entertain the Appellant's Reference.** **Analysis** 1. This Court is alive to its duty as a first appellate court as set out in **Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123** and reiterated in **China Zhongxing Construction Company Ltd v 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 Tribunal had the advantage of seeing and hearing the parties. 2. The Appellant's principal complaint is that the Tribunal erred in concluding that no landlord–tenant relationship existed between the parties and, on that basis, declined jurisdiction to hear the Reference. It is therefore necessary to examine whether the Tribunal properly exercised its jurisdiction under the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act**. 3. The jurisdiction of the Tribunal is conferred by statute. Under **Section 12(1)(a)** of the Act, the Tribunal has power *"to determine whether or not any tenancy is a controlled tenancy."* It follows that where the existence of a landlord–tenant relationship is disputed, the Tribunal must first determine that issue before embarking on the substantive dispute. 4. Jurisdiction is neither conferred by the parties nor by their pleadings; it is conferred by statute. Consequently, the mere assertion by the Appellant that he remained a tenant, or the Respondents' denial thereof, did not by itself determine the question of jurisdiction. That issue fell squarely within the Tribunal's statutory mandate. 5. The proceedings before the Tribunal demonstrate that the existence of the tenancy was the central issue in dispute. On **28th April 2025**, having considered the rival positions taken by the parties, the Tribunal directed the Rent Inspector to visit the premises and ascertain whether the Appellant was carrying on business or occupying the suit premises, and to file a report together with photographs. The Tribunal thereafter extended the interim orders previously granted and fixed the matter for further directions upon receipt of the inspection report. 6. The inspection having been undertaken, the matter came before the Tribunal on **19th May 2025**, when the parties were informed that the inspection had been conducted and that the Tribunal would give directions in light of the inspection report. The matter was subsequently mentioned on **3rd June 2025**, at which point the Tribunal observed that the inspection report had concluded that the Appellant was not conducting business in the suit premises and consequently held that there was no landlord–tenant relationship between the parties. It therefore declined jurisdiction and struck out the Reference. 7. The Appellant further contends that the Tribunal ought not to have relied on the inspection report because it had not been availed to him before the ruling was delivered. It is true that the proviso to **Section 12(3)** of the Act requires that where an inspector is deputed to inspect premises, any report made pursuant thereto shall be communicated to the landlord or tenant, or both. However, the proceedings show that the parties were informed that the inspection had been conducted and that the Tribunal would issue directions after considering the report. The matter did not proceed immediately to determination but stood over until **3rd June 2025**. During that period, the Appellant did not apply for production of the report, or seek leave to respond to it before the Tribunal rendered its decision. The record equally does not disclose that the Tribunal declined any request by the Appellant to access or comment on the report. 8. In the premises, upon independently re-evaluating the record, this Court is not persuaded that the Tribunal misdirected itself in concluding that no landlord–tenant relationship existed between the parties. The Tribunal addressed the jurisdictional issue placed before it by considering the pleadings, the affidavits and the findings contained in the inspection report before arriving at its determination. 9. Likewise, the Appellant has not demonstrated that the Tribunal's reliance on the inspection report occasioned any procedural unfairness warranting interference by this Court, particularly in light of the fact that the parties were notified of the inspection and no application was made before the Tribunal for production of the report or for an opportunity to respond to it prior to the delivery of the ruling. Accordingly, this Court finds no basis upon which to interfere with the Tribunal's finding that it lacked jurisdiction to entertain the Reference or with the consequential order as to costs. **Disposition** 1. In the result, having carefully reconsidered the Record of Appeal, the proceedings before the Business Premises Rent Tribunal, the grounds of appeal and the parties' respective submissions, this Court finds that the appeal is devoid of merit. 2. Accordingly, the Court makes the following orders: 3. The Appeal is hereby dismissed. 4. The ruling and orders of the Business Premises Rent Tribunal made on 3rd June 2025 in BPRT Case No. E224 of 2025 are hereby upheld. 5. The Appellant shall bear the costs of this Appeal. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** via e-mail at **NAIROBI** on this **15th** day of **July, 2026.** **MOHAMMED N. KULLOW** **JUDGE**