Lotfa Resort Diani Ltd & another v Wanja (Civil Appeal E002 of 2025) [2026] KEELC 2967 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that once a tenant is locked out before filing, the Rent Tribunal loses jurisdiction over the dispute.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Waziri Omollo & Company Advocates were properly on record under Order 9 Rule 9 of the Civil Procedure Rules, 2010
- 2.Whether a landlord–tenant relationship existed between the parties
- 3.Whether the BPRT had jurisdiction to entertain the dispute
- 4.Whether the Tribunal erred in granting interim 'break-in' and possession orders
- 5.What orders should issue
- 6.Who will bear the costs of the Appeal
Key legal issues
#Whether a landlord–tenant relationship existed between the parties
Although Cap. 301 recognizes unwritten controlled tenancies, the respondent's admitted denial of access on 13th December 2024 before filing her reference showed dispossession had occurred, ending any landlord–tenant relationship
The court accepted that Section 2 of Cap. 301 recognizes informal, unwritten tenancies where an identifiable landlord, tenant, premises and rent payment exist. However, the respondent's own affidavit admitted she was denied access on 13th December 2024, before filing her reference. Following Michael Gachie Mwarangu, once a tenant is evicted or denied possession, the landlord–tenant relationship ceases. The Tribunal's inference of tenancy from invoices and Mpesa payments therefore faltered where occupation and possession were absent.
Whether the BPRT had jurisdiction to entertain the dispute
The Tribunal had no jurisdiction because its jurisdiction under Cap. 301 is contingent on a subsisting controlled tenancy, which did not exist at the time of filing; its proceedings and decision are a nullity
Relying on Owners of Motor Vessel 'Lillian S' and Samuel Kamau Macharia, the court reiterated that jurisdiction flows from statute and a court downs tools once it finds it lacks jurisdiction. Under Cap. 301 and the Pritam v Ratilal line of authority, existence of a landlord–tenant relationship is a condition precedent to the Tribunal's jurisdiction. Since the respondent was already dispossessed when she filed, no controlled tenancy subsisted, so the entire reference was outside the Tribunal's area of jurisdiction.
Whether the Tribunal erred in granting interim 'break-in' and possession orders
The Tribunal acted ultra vires: Section 12(1)(e) of Cap. 301 empowers only landlords to recover possession, and break-in orders were mandatory injunctions granted without exceptional circumstances
Following Re Hebtulla Properties Limited, the court held that recovery of possession under Section 12(1)(e) is a landlord's remedy; no corresponding power exists for a tenant forcibly dispossessed by a landlord. Additionally, the respondent had admitted dispossession before filing, so the Tribunal could not lawfully restore possession through break-in orders. Such orders amounted to mandatory injunctions at an interlocutory stage, which require special circumstances under the Kenya Breweries v Washington Okeyo threshold.
Whether Waziri Omollo & Company Advocates were properly on record
The firm was not properly on record under Order 9 Rule 9, but the defect was not fatal and the court elected to proceed to determine the appeal on its merits in the interest of substantive justice
Order 9 Rule 9 requires leave of court or a filed consent where an advocate comes on record after judgment. The Tribunal's ruling constituted a judgment, and the record showed no leave or consent for the incoming firm. However, invoking Article 159(2)(d) of the Constitution, the court treated the defect as curable and regularizable, choosing to determine the appeal on its merits rather than dismiss it on a technicality.
Legal principles established
#- The existence of a landlord–tenant relationship is a condition precedent to the BPRT's jurisdiction under Cap. 301; where the tenant has been dispossessed before filing, the relationship has ceased and the Tribunal has no jurisdiction
- Section 12(1)(e) of Cap. 301 empowers only landlords to seek recovery of possession; the Tribunal has no power to order recovery of possession in favour of a dispossessed tenant
- Proceedings conducted without jurisdiction are a nullity and must be set aside
Court orders
#- 1.The appeal is allowed with costs
- 2.The Ruling delivered by Hon. Andrew Muma on 7th February 2025 in BPRT Case No. E287 of 2024 is set aside
- 3.The respondent's reference and application before the Tribunal are struck out for want of jurisdiction
- 4.The costs of the appeal shall be borne by the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal (Hon. Andrew Muma, Member)
- B.P.R.T Cause No. E287 of 2024
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, with appellate powers drawn from Section 78 of the Civil Procedure Act, Cap. 21
Relief refused
#Respondent's reference and application before the Tribunal (declarations, injunction, loss of business damages, compensation)
Struck out for want of jurisdiction - the respondent was already dispossessed before filing suit, so no subsisting landlord-tenant relationship existed
Costs
The costs of this appeal shall be borne by the respondent, in line with Section 27 of the Civil Procedure Act, Cap. 21 and the principle that costs follow the event.
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.
That the appeal filed through a Memorandum of Appeal dated 10th February, 2024 and a 199 Pages Record of Appeal dated 28th May, 2025 be and are hereby found to have merit and is allowed with costs.
That the Ruling delivered by Hon. Andrew Muma, on 7th February, 2025 in BPRT Case No. E287 of 2024 is hereby set aside, and the respondent's reference and application before the Tribunal are struck out for want of jurisdiction.
Jurisdiction under Cap. 301 is contingent upon a subsisting Landlord – Tenant relationship. Since the Respondent was already dispossessed at the time of filing, no such relationship existed.
Section 12(1)(e) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301 empowers only landlords to recover possession, not tenants. The Tribunal therefore exceeded its statutory mandate.
Once eviction occurred, the Tribunal ceased to have jurisdiction, and the respondent's remedy lay in the ordinary civil courts.
Issues in the judgment
#Inconsistent dates for the Memorandum of Appeal (10th February 2024 vs 10th February 2025) and the Record of Appeal (28th April 2025 vs 28th May 2025) within the same judgment
Internal inconsistency in the date of the Tribunal ruling: the judgment states both 22nd December 2024 and 7th February 2025 as delivery dates, and the preliminary objection is dated 22nd December 2024 in one place and 22nd December 2022 in another
The judgment states judgment was delivered on 8th May, 2026 in the body but the memorandum of appeal was said to be dated 10th February, 2024 (respondent's reference) and the ruling dismissing the preliminary objection is elsewhere said to have been delivered on 22nd December, 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lotfa Resort Diani Ltd & another v Wanja (Civil Appeal E002 of 2025) [2026] KEELC 2967 (KLR)", Case Analysis (2026). BPRT Cause No. E287 of 2024 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2967/eng@2026-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.