Githiomi v Maina (Civil Appeal 111 of 2019) [2025] KECA 175 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a lease allowing early termination is a 'controlled tenancy,' meaning disputes must go to the Business Premises Rent Tribunal, not ordinary courts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the tenancy subject matter was a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
- 2.Whether general damages for loss of business were properly awarded (rendered unnecessary by the jurisdictional finding)
Key legal issues
#Whether a five-year-six-month lease with a clause permitting termination on three months' notice at any time is a controlled tenancy
Yes. Clause 9 permitted termination for any reason, not only breach, on three months' notice, satisfying section 2(1)(b)(ii); the first appellate court erred by considering only the term of the lease and overlooking that provision.
Section 2 of the Act defines a controlled tenancy as one either not in writing or, if written, for a period not exceeding five years or containing a provision for termination otherwise than for breach of covenant within five years of commencement. Although the lease term was 5 years 6 months, Clause 9 allowed termination by three months' notice for whatever reason, which can be invoked at any time during the term, bringing it within section 2(1)(b)(ii).
Whether the Chief Magistrate's Court had jurisdiction over the dispute
No. Because the tenancy was a controlled tenancy, the dispute should have been referred to the Business Premises Rent Tribunal in the first instance; the magistrate's court lacked mandate, which vitiated the entire judgment.
Applying Owners of Motor Vessel 'Lilian' v Caltex Oil, jurisdiction is everything and a court without it must down tools. Having found the tenancy controlled under section 2(1)(b)(ii) of the Act, the magistrate's court had no mandate to adjudicate, so both judgments below fall away regardless of the merits of the damages claim.
Whether jurisdiction can be raised for the first time on second appeal even though not raised at trial
Jurisdiction is a matter of law and may be raised at any time; the fact that it was first raised on appeal did not bar its consideration.
This being a second appeal, only issues of law fall for consideration. Jurisdiction of the court is a matter of law. The issue, though not raised at trial, was raised in the first appeal and the Court was bound to consider it, as a court acting without jurisdiction makes a decision amounting to nothing.
Legal principles established
#- A written lease whose termination clause permits termination, otherwise than for breach of covenant, within five years of commencement is a controlled tenancy under section 2(1)(b)(ii) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, and disputes over such a tenancy must first be referred to the Business Premises Rent Tribunal.
- Jurisdiction may be raised at any stage of the proceedings, including for the first time on appeal, and a judgment rendered without jurisdiction is a nullity.
Court orders
#- 1.Appeal allowed; the appeal succeeds
- 2.Judgment of the High Court set aside
- 3.Consequently, the judgment of the Chief Magistrate set aside
- 4.Each party to meet their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal (issues of law only), governed by the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301
Relief refused
#Determining whether general damages for loss of business were properly awarded on the merits
The jurisdictional defect vitiated the entire trial judgment, so the Court did not proceed to the merits.
Costs
Each party to meet their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Clause 9 of the lease brings the matter under section 2(1)(b)(ii) of the Act; the tenancy between the parties being a controlled tenancy it follows that their dispute should have been referred to the tribunal in the first instance.
The first appellate court erred by failing to take into account section 2(1)(b)(ii) of the Act. It is trite that where a court has no mandate it has no business handling a matter.
Jurisdiction is everything. Without it, a court has no power to make one more step.
As a result, the appeal succeeds. We set aside the judgment of the High Court and, consequently, the judgment of the chief magistrate.
We order that each party meet their own costs.
Issues in the judgment
#Internal date inconsistency in the pleadings: the amended plaint is dated 6th July 2011 while the suit was instituted as Civil Case No. 475 of 2016, and the defence is dated 13th August 2007, before the plaint date.
The judgment does not state the case number, party names, or neutral citation, limiting identifiability of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rupas Gift Centre Limited & another v Government of the Republic of Uganda & another (Land Case E493 of 2025) [2026] KEELC 3647 (KLR)[2026] KEELC 3647 (KLR)15 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Githiomi v Maina (Civil Appeal 111 of 2019) [2025] KECA 175 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/175/eng@2025-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.