Gitonga v County Government of Nyeri & another (Environment and Land Petition E003 of 2025) [2026] KEELC 2996 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a tenant's bid to keep a county staff house, ruling that subletting agreements prohibited by regulations are illegal and unenforceable.
What this practically means
#Executive summary
#Key legal issues
#Competence of a notice of motion without a supporting affidavit
The infirmity was not fatal; the court proceeded to determine the application on its merits rather than strike it out
Order 51 rule 4 requires motions grounded on evidence to be accompanied by the supporting affidavit. The court noted the application lacked a supporting affidavit and that the suit was erroneously filed as a Petition in the CTS system. Citing Jungle Energy and Amondi v Airtel, the court held striking out is not necessarily fatal where defects are procedural, and declined to dispose of the matter on that basis.
Enforceability of the subletting agreement
The agreement between the Applicant and the 2nd Respondent was illegal and void because the Estate Administration Regulations prohibited subletting of staff houses
The Estate Administration Regulations reserved Kimathi Estate houses for staff and prohibited subletting. Applying Patel v Singh and Kenya Airways v Satwant Singh Flora, the court held the contract was void ab initio and the Applicant, implicated in the illegality, could not invoke the court's aid. No valid landlord-tenant relationship existed since the 2nd Respondent was never the owner.
Legal principles established
#- A notice of motion grounded on evidence must be supported by an affidavit; where grounded on affidavit, a copy of the affidavit intended to be used must be served
- A contract expressly or impliedly prohibited by statute or contrary to public policy is void ab initio and unenforceable
- A court will not assist a party implicated in illegality, whether or not the defendant pleaded the illegality
Court orders
#- 1.The instant application, dated February 19, 2025, is without merit and is hereby dismissed with costs.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over landlord-tenant disputes concerning the suit premises (House KM6-E41, Kimathi Estate, Nyeri)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitonga v County Government of Nyeri & another (Environment and Land Petition E003 of 2025) [2026] KEELC 2996 (KLR)", Case Analysis (2026). Petition dated February 19, 2025 (Notice of Motion dated February 19, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2996/eng@2026-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.