https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5194

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT NAIROBI** **ELC APPEAL NO. E081 OF 2025** **SHADE MANUFACTURERS AND** **HOTEL LTD…........................................................APPELLANT/APPLICANT** **=VERSUS=** **SARAH MWERU MATUU** **GRACE GACIKU** **VIRGINIA WANJIRU** **LOUIS WAITHERA……………………………………………….RESPONDENTS** **JUDGMENT** 1. By a Memorandum of Appeal dated 2nd May 2025, the Appellant appealed against the ruling of Hon. Becky Cheloti Mulemia in MCRTC/5/2022 delivered on 25th April 2025. The Appellant set out eight grounds of appeal challenging the decision of the Trial Magistrate. **BACKGROUND** 1. Before the Magistrates’ Court, the Appellant/Applicant filed a Notice of Preliminary Objection dated 5th March 2025, challenging the Respondent’s application for the adoption of the Bill of Costs taxed by the Business Premises Rent Tribunal as a judgment of the Court. The Appellant argued that the application was incompetent on the grounds that under paragraph 10 of the Advocates Remuneration Order, the jurisdiction to tax the bill of costs is exclusively reserved for duly appointed officers, namely the Registrar, a district or deputy registrar of the High Court, or such other qualified officer as may be appointed in writing by the Chief Justice. 2. The Appellant argued that the Business Premises Rent Tribunal is not a taxing authority appointed under the Advocates Remuneration Order and therefore lacks jurisdiction to tax the bill of costs. 3. Based on the foregoing, the Appellant contended that the Tribunal lacked the original jurisdiction to tax the bill of costs, and that the Subordinate court similarly lacked jurisdiction to adopt and enforce the Tribunal’s taxation. 4. Accordingly, the Appellant sought an order declaring the taxation and subsequent application for adoption as null and void. In conclusion, the Appellant urged the Court to dismiss the application. 5. The preliminary objection was canvassed by way of written submissions. The Applicant filed its submissions dated 7th April 2025. On behalf of the Applicant, Counsel submitted that although the Tribunal’s taxation on 27th January 2021 was not appealed, the Court cannot disregard the illegality underlying it. 6. The Respondents filed their submissions dated 15th April 2025. On their behalf, Counsel submitted that, under Section 19 of Cap 301, the Tribunal's decision becomes conclusive once it is recorded and served on the parties. It was further submitted that the Act expressly provides a right of appeal to the Environment and Land Court within thirty days, a remedy which the Applicant admittedly failed to invoke. 7. Counsel relied on Section 16 of the Act, and on Regulations 17, which permit representation by Counsel before the Tribunal and 18, which directs the Chairperson, in awarding costs, to apply the scale prescribed under the Advocates' Remuneration Order. It was submitted that the Applicant lacked the legal basis to challenge the Tribunal’s taxation through enforcement proceedings before the subordinate Court. Counsel further submitted that the Court had no jurisdiction to sit on appeal against or review an order of the Tribunal, which was precisely what the Tenant's objection invited it to do. 8. In a ruling dated 25th April 2025, the learned Trial Magistrate dismissed the preliminary objection on the grounds that, as a Court of concurrent jurisdiction with the Tribunal, it lacked supervisory jurisdiction over the Tribunal and could not invalidate its decision. 9. Aggrieved by that decision, the Appellant challenged it on the following grounds: 1. ***THAT the Learned Magistrate erred in law and fact by failing to consider that the Appellant's Preliminary Objection raised pertinent issues of law.*** 2. ***THAT the Learned Magistrate erred in law and fact by failing to consider that it had jurisdiction to entertain the Appellant's Preliminary Objection.*** 3. ***THAT the Learned Magistrate erred in law and fact by failing to consider the evidence adduced by the Appellant.*** 4. ***THAT the Learned Magistrate erred in law and fact by failing to note that the Respondent's Application seeking to adopt the bill of costs taxed at the Tribunal is a nullity.*** 5. ***THAT the Learned Magistrate erred in law and fact by failing to agree with the submissions by the Appellant that the Honourable Tribunal lacked jurisdiction to tax Bill of Costs.*** 6. ***THAT the Learned Magistrate erred in law and fact by failing to note that issues to deal with taxation of Client- Advocate Bill of Costs and Party and Party Bill of Costs is bestowed upon taxing masters who are normally appointed by the Chief Justice.*** 7. ***THAT the Learned Magistrate erred in law and fact by failing to consider that the Chairman in the Tribunal is not bestowed with the mandate to tax Client- Advocate Bill of Costs and Party and Party Bill of Costs.*** 8. ***THAT the Learned Magistrate erred in law and fact by failing to note that jurisdiction is everything, and it can be brought up and considered at any stage of the proceedings.*** 10. The Appellant seeks the following reliefs: 1. ***THAT the ruling delivered by Hon. Becky Cheloti Mulemia delivered on 25th April 2025 be set aside/ quashed.*** 2. ***THAT an order be made directing that the Preliminary Objection dated 5th March 2025, which was filed by the Appellant before the Lower Court, is merited and that it should be allowed as per the prayers sought.*** 3. ***THAT the Honourable Court be at liberty to issue any other order in the spirit of dispensation of justice.*** 4. ***THAT the costs be borne by the Respondent.*** 11. The Appeal was canvassed by way of written submissions. **THE APPELLANT’S SUBMISSIONS** 1. The Appellant filed its submissions dated 10th July 2026. On behalf of the Appellant, Counsel submitted that the learned Chairperson of the Business Premises Rent Tribunal acted without jurisdiction in taxing the Respondent’s Party and Party Bill of Costs. Counsel further submitted that any proceedings conducted without jurisdiction are null and void ab initio. Counsel further submitted that the taxation of a bill of costs is a special jurisdiction established under the Advocates Act and the Advocates Remuneration Order, which can only be exercised by a duly appointed taxing officer. 2. To support this argument, Counsel relied on paragraph 10 of the Advocates' Remuneration Order, which states that the taxing officer for the taxation of a bill under this Order shall be the Registrar or a District Registrar of the High Court or, in the absence of a Registrar, such other officer as the Chief Justice may, in writing, appoint. 3. Counsel submitted that the Chairperson of the Business Premises Rent Tribunal is not among the officers authorized to exercise the jurisdiction of a taxing officer. Counsel contended that without a Gazette Notice, Practice Direction or written appointment, the learned Chairperson lacked jurisdiction to tax the bill of costs. To support this argument, Counsel relied on the case of **Wilfred N. Konosi t/a Konosi & Co Advocates v Flamco Limited**, where the Court held that jurisdiction is conferred on the taxing officer by law. 4. Counsel further submitted that jurisdiction cannot be conferred by practice where none exists. In conclusion, Counsel urged the Court to allow the Appeal as prayed. **THE RESPONDENTS SUBMISSIONS** 1. The Respondents filed their submissions dated 21st July 2026. On behalf of the Respondents, Counsel submitted that the issue regarding the Tribunal’s jurisdiction had previously been raised before the Tribunal through a preliminary objection dated 27th September 2019, which was dismissed. Subsequently, the Tribunal proceeded to tax the bill of costs. Counsel argued that if the Appellant was aggrieved by the decision, he should have appealed to this court in accordance with the law. It was argued that the Appellant cannot present the same objection to the subordinate court that the Tribunal declined to hear, as the subordinate court has no appellate jurisdiction. 2. Counsel submitted that the Appellant participated in the taxation proceeding and was present when the bill of costs was taxed, but did not challenge the Tribunal’s decision through the appellate process. To support this point, reliance was placed on Section 15 of CAP 301. Counsel further relied on Regulations 16, 17 and 18 to submit that the Chairperson of the Tribunal has jurisdiction to tax a bill of costs. In conclusion, Counsel submitted that the Appeal is without merit and should be dismissed with costs. **ANALYSIS AND DETERMINATION** 1. The principles guiding a first Appellate Court were discussed in the case of **Selle & Another v Associated Motor Boat Company and Others [1968] 1 EA 123,** where the Court of Appeal set out the duty of Appellate Courts as follows: ***“An appeal to this court from a trial court by the High Court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate itself and drive its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge finding of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanour of a witness is inconsistent with the evidence in the case generally.”*** 1. Similarly, in the case of **Ephantus Mwangi & Another v Duncan Mwangi [1982-1988] 1 KAR 278,** the Court of Appeal held that; ***“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally***.” 1. Having considered the record, the following issues arise for determination: 1. *Whether the Learned Trial Magistrate erred in declining to determine the Preliminary objection;* 2. *Whether the Chairperson of the Business Premises Tribunal had jurisdiction to tax the Party and Party costs: and* 3. *Whether the Appellant could challenge the legality of the Tribunal’s taxation through a preliminary objection before the subordinate Court.* **WHETHER THE TRIAL MAGISTRATE ERRED IN DECLINING TO DETERMINE THE PRELIMINARY OBJECTION** 1. The Appellant contends that paragraph 10 of the Advocates Remuneration Order exclusively reserves the authority of taxation to duly appointed taxing officers, and that the Tribunal lacks such jurisdiction. 2. It is trite that jurisdiction is everything, and without it, the Court cannot proceed. In **Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Limited (1989) eKLR**, the Court held that: ***“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings...”*** 1. Similarly, in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR,** the Court held that: “***A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”*** 1. The record shows that this dispute originated from proceedings before the Business Premises Rent Tribunal in Tribunal Case No. 95of 2015. By a ruling delivered on 14th December 2020, the Chairman of the Tribunal, Hon. Mbichi Mboroki, taxed the Respondent/Landlord's Bill of Costs at Kshs. 1,048,300/-. Subsequently, the Respondent/Landlord instituted MCRTC No. 5 of 2022 before the subordinate court, seeking to enforce the Tribunal's order. It was during these enforcement proceedings that the Appellant/Tenant raised the Preliminary Objection challenging the Tribunal's jurisdiction to tax the Bill of Costs. 2. The Learned Trial Magistrate declined to entertain the Preliminary Objection on the grounds that the subordinate court lacked supervisory jurisdiction over the Tribunal. The Court held that determining the validity of the Tribunal's taxation would amount to exercising supervisory jurisdiction. 3. The Appellant faults the trial magistrate for declining to consider the preliminary objection. The Respondents submitted that the objection invited the subordinate court to revisit and invalidate a decision made by the Tribunal, a jurisdiction it inherently lacked. They argued that the Appellant should have appealed the Tribunal’s decision to this Court. 4. As correctly submitted by the Appellant, any act undertaken without jurisdiction is null and void ab initio. 5. The learned trial magistrate addressed the issue of whether it could revisit the legality of a concluded taxation undertaken by the tribunal. In determining that issue, the subordinate court would have to hear it on appeal from the Tribunal’s decision, a power it does not possess. Based on the foregoing, I find that the Learned Trial Magistrate did not err in finding that the objection could not be entertained. 6. The application before the subordinate court was for enforcement brought under Section 14(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act,which provides that: ***“A duly certified copy of any determination or order of a Tribunal may be filed in a competent subordinate court of the first class by any party to the proceedings before such Tribunal or by the Tribunal, and on such copy being filed and notice thereof being served on the Tribunal by the party filing the same such determination or order may, subject to any right of appeal conferred by or under this Act, be enforced as a decree of the court.”*** 1. The provision establishes a statutory mechanism for enforcement, through which a determination or order of the Tribunal may be filed in a competent subordinate court and enforced as a decree of that court, subject to the right of appeal. It does not grant the subordinate court jurisdiction to review, vary or invalidate the Tribunal’s order. 2. Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act states that any party to a reference who is dissatisfied with any determination or order of a Tribunal made under this Act may, within thirty days of such determination or order, appeal to the Environment and Land Court. This right of appeal also applies to the Tribunal's decision on costs. 3. It follows that this Court is the appropriate forum to review the Tribunal's taxation of the Bill of Costs on appeal. The learned Trial Magistrate cannot be faulted for declining to exercise supervisory jurisdiction that the law does not confer upon her Court. 4. In light of the foregoing, I find that the Learned Trial Magistrate correctly appreciated the limits of the subordinate jurisdiction and properly declined to determine the preliminary objection. **WHETHER THE CHAIRPERSON OF THE BUSINESS PREMISES RENT TRIBUNAL HAD JURISDICTION TO TAX THE PARTY AND PARTY BILL OF COSTS** 1. Although I have found that the Learned Trial Magistrate properly declined to entertain the Preliminary objection, the question of whether the Business Premises Rent Tribunal had jurisdiction to tax the Party and Party formed the central issue in this appeal and was fully argued by the parties. It is therefore prudent for this court to determine the issue. 2. The Appellant contends that paragraph 10 of the Advocates Remuneration Order confers jurisdiction to tax bills of costs exclusively to officers appointed under that provision, specifically the Registrar, a district or deputy registrar of the High Court, or any other officer appointed by the Chief Justice in writing. It was also argued that the Chairman of the Business Premises Rent Tribunal is not an officer designated under that provision and therefore lacks jurisdiction. 3. The Respondents relied on Regulation 18, which empowers the Tribunal to award costs in accordance with the Advocates' Remuneration Order. 4. Section 12(1)(k) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act empowersthe Business Premises and Rent Tribunal to determine costs related to references made to it, which may be recovered as a civil debt.That jurisdiction is supplemented byRegulation 18 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and Procedure) Regulations, which provides that in awarding costs and witnesses' expenses, the Chairperson shall consider the appropriate scale prescribed under the Advocates Remuneration Order. 5. Paragraph 2 of the Advocates' Remuneration Order further provides that it applies to the taxation of costs between party and party in contentious matters not only in the High Court and subordinate courts, but expressly in a Tribunal appointed under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301. 6. The Order also sets out in Schedule 8 a specific scale of costs for proceedings before the Tribunal. It would be inappropriate for the Order to establish a bespoke costs scale for the Tribunal and for its Regulations to direct the Chairman to apply that scale if, as the Appellant asserts, the Chairman is legally incapable of taxing costs in any capacity. 7. The Appellant's reliance on paragraph 10 of the Order is misplaced in this context, as it does not remove that jurisdiction. That provision applies to the taxing officer handling High Court and subordinate court bills, whereas the Order separately and specifically includes the Tribunal's costs jurisdiction within its scope through Schedule 8 and the enabling Regulation 18. 8. Accordingly, I find that the Chairperson of the Business Premises Rent Tribunal Court had jurisdiction to tax the Bill of Costs in Tribunal Case No. 95 of 2015. The taxation undertaken on 27th January 2021 was therefore not a nullity for lack of jurisdiction. **WHETHER THE APPELLANT COULD CHALLENGE THE LEGALITY OF THE TRIBUNAL’S TAXATION THROUGH A PRELIMINARY OBJECTION BEFORE THE SUBORDINATE COURT.** 1. The Appellant faults the trial magistrate for declining to determine the preliminary objection on the grounds that doing so would amount to exercising supervisory jurisdiction over the BPRT. The law clearly outlines the procedure for challenging such objections. The Appellant contends that the issue raised concerned jurisdiction, which can be raised at any stage of the proceedings. The record shows that after the Tribunal rendered its decision, the Appellant neither appealed nor sought its review. Instead, the Appellant attempted to challenge the decision during the adoption proceedings before the subordinate court. The subordinate court has no jurisdiction to interrogate the legality of the Tribunal’s decision. 2. In the end, this Court finds that the appeal lacks merit and is accordingly dismissed, with costs to the Respondents. **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2026.** **…………………………** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF: -** Ruth Chege for the Respondents Ms Okumu holding brief for Nyangito for the Appellant