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ELCAllowedELC Case No. E006 of 2022 (Kericho)· [2025] KEELC 7295 (KLR)

Kirui v Kirui (Environment and Land Appeal E006 of 2022) [2025] KEELC 7295 (KLR)

Environment and Land Court
23 October 2025
4,391 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled a landlord cannot evict a protected shop tenant with a defective notice, even if the tribunal approved it.

What this practically means

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Executive summary

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The Appellant, a tenant on Plot No. 24 Itembe–Kapkwen Market, appealed to the Environment and Land Court at Kericho against a ruling of Hon. Patricia May, Vice Chair of the Business Premises Rent Tribunal, delivered on 8th September 2022 in BPRT Case No. E037 of 2021. The Tribunal had dismissed the tenant's application seeking an order that the landlord accept rent and be restrained from harassing or evicting him, ordered immediate vacant possession with OCS Bomet Police Station assistance, permitted the landlord to hold the tenant's goods for rent arrears, and ordered each party to bear their own costs. The landlord had issued a Notice to Vacate dated 17th November 2021 to take effect on 1st January 2022 on grounds of intended renovation. The Appellant argued the tenancy was a controlled tenancy under Cap 301 and the notice was defective for non-compliance with Section 4. The Respondent admitted the tenancy was controlled but maintained the termination was procedural. The Court first held that the appellant was bound by the grounds in the memorandum of appeal and disregarded new grounds raised in submissions, framing a single issue: whether the Tribunal failed to consider the relevant law and the Appellant's submissions. The Court found the notice, effective 1st January 2022, did not meet Section 4's two-month requirement and was found by the Tribunal itself to be wanting in form. The Tribunal had nonetheless invoked Article 159 of the Constitution to allow the notice. Following Lall v Jeypee and Munaver N Alibhai, the Court held Section 4 is mandatory and Article 159 could not cure non-compliance. The appeal was allowed, the Tribunal's ruling set aside, and the Appellant awarded costs of the appeal.

Key legal issues

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01

Validity of the notice to terminate a controlled tenancy

Holding

The notice dated 17th November, 2021 was invalid as it failed to comply with Section 4 of Cap 301, requiring not less than two months' notice in the prescribed form

Reasoning

The parties did not dispute that the tenancy was controlled or that the notice dated 17th November 2021 was to take effect on 1st January 2022, a period of about six weeks. Section 4(4) requires not less than two months before a tenancy notice takes effect, and the tribunal itself found the notice wanting in form yet allowed it under Article 159. The Court held the tribunal erred in disregarding the mandatory provisions of Section 4.

p. 10
02

Scope of first appellate review of grounds vs submissions

Holding

An appellant cannot travel beyond the memorandum of appeal; new grounds raised only in submissions are disregarded

Reasoning

Relying on Coastal Bottlers Limited v George Karanja, Amoth v Duncan and Kenya Hotels Ltd v Oriental Commercial Bank, the Court held that pleadings and grounds of appeal bind both parties and the Court. The Appellant's four grounds in submissions differed from the five in the memorandum of appeal dated 6th October 2022, and the extra grounds were therefore excluded from consideration.

p. 7
03

Role of a first appellate court

Holding

A first appellate court re-evaluates the evidence and draws its own conclusions while making due allowance for not having seen or heard witnesses

Reasoning

Citing Gitobu Imanyara & 2 others v Attorney General and Abok James Odera v John Patrick Machira, the Court adopted the settled principle that a first appeal is by way of retrial, requiring re-evaluation and re-analysis of the record before deciding whether the tribunal's conclusions should stand.

p. 5

Legal principles established

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  • An appellant is bound by the grounds of appeal in the memorandum of appeal; new issues raised in submissions should be disregarded
  • A controlled tenancy can only be terminated in accordance with the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, whose notice provisions are mandatory
  • Article 159 of the Constitution cannot be invoked to validate a notice that fails mandatory statutory requirements

Court orders

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  1. 1.The appeal succeeds
  2. 2.The ruling delivered on 8th September, 2022 by the Business Premises Rent Tribunal in Case No. E037 of 2021 is set aside
  3. 3.The Appellant shall have costs of the appeal

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 2(1)(a)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 4(1), (2), (3), (4), (5), (6)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 12
  • Constitution of Kenya, 2010Article 159
  • Law of Evidence (as cited by the Tribunal)Section 107

Cases cited (18)

  • Manaver N. Alibhai t/a Diani Gallery v South Coast Holdings Limited
    [2020] eKLR
  • Lall vs Jeypee Investment Ltd
    [1972] EA 512
  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • John Wanyange Mwangi v Duncan Ng’ang’a Kimotho
    BPRT No. 74 of 2021
  • Paul Lobo t/a Lewis Lobo Hotel v Maria Gatitu and Dominic Ntongai
    not given
  • Beehive Resort v Joram Muya Waweru
    BPRT Case No. 154 of 2020 consolidated with BPRT No. 1 of 2021
  • Gitobu Imanyara & 2 others Vs Attorney General
    [2016] eKLR
  • Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Coastal Bottlers Limited v George Karanja
    [2015] eKLR
  • Galaxy Paints Company Ltd v Falcon Guards Ltd
    Civil Appeal No. 219 of 1998
  • William Muthee Muthami v Bank of Baroda
    [2014] eKLR
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Amoth & 2 others v Duncan & 10 others
    (Environment and Land Appeal E002 of 2023) [2024] KEELC 1340 (KLR)
  • Kenya Hotels Ltd vs. Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited)
    [2019] eKLR
  • Eldomart Holdings Limited vs The Ticket Company Limited
    [2016] eKLR
  • Munaver N Alibhai t/a Diani Boutique v South Coast Fitness & Sports Centre Limited
    [1995] KECA 166 (KLR)
  • Mutura v Kagombe
    [2024] KEELC 5089 (KLR)
  • Lall vs Jeypee Investments Ltd Nairobi HCCA No.120 of 1971 (1972) EA 512
    (1972) EA 512
On appeal from
Business Premises Rent Tribunal
Business Premises Rent Tribunal Case No. E037 of 2021
Jurisdiction invoked
Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)

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, "Kirui v Kirui (Environment and Land Appeal E006 of 2022) [2025] KEELC 7295 (KLR)", Case Analysis (2025). ELC Case No. E006 of 2022 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7295/eng@2025-10-23

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