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ELCDismissedELC Appeal (Homa Bay) - memorandum of appeal dated 3rd October 2022

Amito v Odiwuor (Environment and Land Appeal E047 of 2022) [2024] KEELC 6361 (KLR)

Environment and Land Court
30 September 2024
1,673 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that renting bare land is not a 'controlled tenancy', so rent disputes over empty land belong in civil courts, not the Rent Tribunal.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Homa Bay against a ruling of Hon. J. S. Wesonga, PM, delivered on 30th September 2022 in Homa Bay CM ELC No. 89 of 2022, dismissing the 1st defendant's preliminary objection on jurisdiction. The underlying suit, brought by the plaintiff by plaint dated 21st July 2022, challenged the proclamation and attachment of his tools of trade in a distress for rent on land parcel Kanyada/Kotieno Katuma 'A'/2991 and sought declarations, injunctions and general damages. The appellant contended that the parties' relationship, founded on a five-year written lease dated 25th May 2021, was a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, so that the Business Premises Rent Tribunal, not the subordinate court, had jurisdiction. The respondent, relying inter alia on ex parte Albert Kigera Karume, submitted that the dispute was one of breach of contract over a lease of bare land with no buildings, hence not a controlled tenancy. G. M. A. Ongondo, J, guided by Re Hebtulla Properties Ltd on the statutory limits of the Tribunal's jurisdiction, held that a lease of bare land is not a controlled tenancy within Section 2 of Cap 301, and that disputes over land leases fall outside the Tribunal's mandate. The trial magistrate was found to have applied correct principles, her ruling was affirmed, and the appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court is seized with jurisdiction to hear and determine Civil Suit No. 89 of 2022
  2. 2.Whether the lease between the parties was a controlled tenancy within the meaning of Cap 301
  3. 3.Whether the instant appeal is meritorious
  4. 4.Whether just orders should issue

Key legal issues

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01

Whether the trial court had jurisdiction over the suit or whether the Business Premises Rent Tribunal had exclusive jurisdiction

Holding

The trial court was properly seized; the dispute was over a land lease, not a tenancy of a shop, hotel or catering establishment under Cap 301

Reasoning

The parties leased bare land parcel Kanyada/Kotieno Katuma 'A'/2991 with no buildings erected on it. A controlled tenancy under Section 2 of Cap 301 is a tenancy of a shop, hotel or catering establishment. Rent was for the land itself, not business premises, so the Tribunal lacked jurisdiction and the civil court was the proper forum.

p. 2
02

Whether the lease was a controlled tenancy

Holding

No - the lease was in writing, for a term of five years, and related to bare land, so it fell outside the Section 2 definition

Reasoning

Section 2 defines a controlled tenancy as one of a shop, hotel or catering establishment that is unwritten, or written for a period not exceeding five years with termination provisions, or of a prescribed class. The agreement dated 25th May 2021 was for bare land; hence it was not a controlled tenancy and the Rent Restriction/Business Premises fora did not apply.

p. 4
03

Whether the appeal should be allowed

Holding

The appeal lacked merit and was dismissed; the trial magistrate's ruling was affirmed

Reasoning

The learned trial magistrate was guided by the evidence and applied correct principles of law in holding that the Business Premises Rent Tribunal lacked jurisdiction over land leases and that the suit was properly before the court. The appellate court found no reason to disturb the ruling.

p. 4

Legal principles established

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  • The Business Premises Rent Tribunal is a creature of statute and has only such jurisdiction as is specifically conferred on it by statute
  • Where the leased premises are bare land with no buildings, the tenancy is not a controlled tenancy under Cap 301 and the dispute belongs to the civil courts
  • On a first appeal, the court must reconsider the evidence with caution and reach its own independent conclusions

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Ruling of the trial magistrate dated 30th September 2022 dismissing the preliminary objection affirmed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Homa Bay Chief Magistrate's Court, Environment and Land Court
89 of 2022
Jurisdiction invoked
Appellate jurisdiction from the subordinate court over a ruling on a preliminary objection (first appeal from the trial court)

Relief refused

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Declaration that the subordinate court lacked jurisdiction over the cause of action and striking out of the suit with costs

The dispute concerned a land lease with no buildings on the land, so it was not a controlled tenancy and the Business Premises Rent Tribunal had no jurisdiction; the trial magistrate applied correct principles

p. 4

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A fortiori, this appeal is devoid of merit. It is hereby dismissed with costs to the respondent.
p. 4Final orders - dismissal of appeal
It must, however be borne in mind that the Tribunal is a creature of statute and has only such jurisdiction as has been specifically conferred upon it by the Statute
p. 4Statutory tribunals and limited jurisdiction
my mandate is to reconsider the evidence on record with caution and reach my own independent conclusions and inferences
p. 2Duty of a first appellate court
Where there is no subsisting tenancy relationship between the parties to the dispute, the tribunal has no jurisdiction. The proper fora where the dispute should be adjudicated, in such circumstances, are the civil courts.
p. 4Tribunal jurisdiction and tenancy relationships

Issues in the judgment

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minor

Case title not stated in the judgment; the names of the parties are not given, only their roles as appellant and respondent

minor

Grounds of opposition dated 24th July 2024 referred to as responding to an application filed in July 2022 - date appears inconsistent

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Amito v Odiwuor (Environment and Land Appeal E047 of 2022) [2024] KEELC 6361 (KLR)", Case Analysis (2024). ELC Appeal (Homa Bay) - memorandum of appeal dated 3rd October 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6361/eng@2024-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.