Diriye v Silver Dash Ltd & another (Environment and Land Appeal E061 of 2025) [2026] KEELC 3813 (KLR)
The bottom line
#The High Court ruled that evicting a protected tenant without a Tribunal order is unlawful, and the landlord must refund Kshs. 398,708.
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 Tribunal erred in failing to consider all material evidence on record, including the Appellant's Supplementary Affidavit and the concession and status quo order of 11th December 2024
- 2.Whether the Tribunal erred in finding that the Appellant's claim was overtaken by events
- 3.Whether the Tribunal erred in holding that the tenancy was ambiguous and unenforceable
- 4.Whether the Tribunal erred in validating, expressly or by implication, the 1st Respondent's self-help repossession of the premises on 11th November 2024
- 5.Whether the Appellant is entitled to equitable and/or restitutionary relief, and if so, in what form
Key legal issues
#Failure to consider material evidence
The Tribunal erred in law by failing to engage with the Appellant's Supplementary Affidavit and the recorded concession and status quo order of 11th December 2024
Article 50(1) of the Constitution and Section 4(g) of the Fair Administrative Action Act oblige a decision-maker to consider all relevant evidence. The counsel's concession that no party had taken possession formed the basis of a consent status quo order; the Tribunal could not proceed as though neither the concession nor the order existed. Unrebutted affidavit averments must be taken as true.
Claim overtaken by events
The Tribunal erred in treating the unlawful repossession and re-letting as mooting the claim
An illegal act cannot lawfully extinguish rights; the repossession was the very wrong that precipitated the proceedings. The denial of possession was a continuing breach, and a tribunal cannot issue a status quo order, watch it violated, then treat the post-violation position as the legal baseline - that would be an abdication of jurisdiction. Cap. 301's jurisdiction is remedial and protective.
Ambiguity and enforceability of the tenancy
The tenancy was a valid controlled tenancy under Cap. 301 notwithstanding the absence of a signed lease
Section 2 of Cap. 301 defines a controlled tenancy to include unwritten tenancies. The landlord's acceptance of the assignment, acceptance letter, demand for rent and acknowledgement of the predecessor's payments objectively evidence an intention to create legal relations by conduct. The landlord cannot generate ambiguity by withholding the lease and profit from it (contra proferentem); legitimate expectation and unjust enrichment principles reinforce the finding.
Self-help repossession
The 1st Respondent's repossession on 11th November 2024 without notice or Tribunal order was unlawful, and the lease to the 2nd Respondent executed the same day was tainted
Section 7 of Cap. 301 prohibits recovery of possession of controlled premises save under a Tribunal order. Following Gusii Mwalimu Investment and Kamau v Mary, a landlord who re-lets premises to a third party without Tribunal authority commits an unlawful eviction regardless of reasons. All acts flowing from the unlawful repossession are tainted and cannot confer valid rights against the Appellant's prior rights.
Appropriate remedy
Reinstatement declined; restitution of Kshs. 398,708/= ordered; damages claim for losses not awarded for want of evidence; dismissal of the counterclaim confirmed
Reinstatement would affect the 2nd Respondent's possessory rights without a full hearing on the validity of his lease, which has not been separately impugned. The 1st Respondent retained the goodwill/deposit consideration while unlawfully expelling the tenant and would be unjustly enriched if not required to restore it. Unliquidated damages cannot be awarded without an evidential basis for quantum. Rent arrears under an undisclosed unsigned lease cannot stand.
Legal principles established
#- On first appeal the appellate court re-evaluates the evidence and reaches its own conclusions while alive to the fact it did not see or hear the witnesses
- A concession of fact made by counsel in open court and acted upon by a tribunal binds the party making it
- A party cannot rely on the fruits of its own illegality to defeat a pending claim; a wrongdoer's unlawful act cannot extinguish the aggrieved party's rights
- A controlled tenancy under Cap. 301 includes a tenancy not reduced to writing; absence of a signed lease does not render a tenancy unenforceable
- Self-help eviction from controlled premises without a Tribunal order is unlawful, and a tainted repossession cannot be sanitised by subsequent acts
- Equity will not allow a landlord who has accepted tenancy consideration and then unlawfully evicted the tenant to retain that consideration (ubi jus ibi remedium)
Court orders
#- 1.A Declaration that the Appellant was a lawful controlled tenant of Shop No. GB09 at Shujaa Mall, Nairobi, within the meaning of Section 2 of Cap. 301, and that the 1st Respondent unlawfully dispossessed him on 11th November 2024 by way of self-help eviction contrary to Cap. 301
- 2.The prayer for reinstatement to the suit premises is declined at this stage, without prejudice to any separate proceedings the Appellant may institute, including proceedings challenging the validity of the 2nd Respondent's lease
- 3.The 1st Respondent shall refund to the Appellant Kshs. 398,708/= within sixty (60) days of the date of the Judgment
- 4.In default of payment within sixty (60) days, the said sum shall attract interest at court rates from the date of the Judgment until payment in full
- 5.The 1st Respondent's counterclaim for rent arrears of Kshs. 400,064/= is dismissed and that finding of the Tribunal is confirmed
- 6.The 1st Respondent shall pay to the Appellant the costs of this appeal and the costs of the proceedings before the Tribunal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal
- Tribunal Case No. E1234 of 2024
- Jurisdiction invoked
- High Court sitting as a first appellate court from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301)
Relief refused
#Reinstatement to the suit premises
An order of reinstatement would require dislodging the 2nd Respondent, whose lease has not been separately impugned or declared void in these proceedings, risking injustice without a full hearing on the validity of his lease
Compensation for financial losses (including construction costs)
No evidence of quantum was adduced before the Tribunal; the record contains no receipts, invoices or particularised evidence on which quantum could be found
Costs
The 1st Respondent shall pay to the Appellant the costs of this appeal and the costs of the proceedings before the Tribunal.
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.
In the result, the appeal is allowed. The Ruling and Orders of the Business Premises Rent Tribunal delivered by Hon. Cyprian Mugambi on 14th March 2025 in Tribunal Case No. E1234 of 2024 are hereby set aside in their entirety save for the dismissal of the 1st Respondent's counterclaim for rent arrears, which is confirmed.
A Declaration that the Appellant, Abdikhani Abdi Diriye, was a lawful controlled tenant of Shop No. GB09 at Shujaa Mall, Nairobi, within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301)
The 1st Respondent, Silver Dash Limited, shall REFUND to the Appellant the sum of KSHS. 398,708/= (Kenya Shillings Three Hundred and Ninety-Eight Thousand Seven Hundred and Eight Only), being the consideration paid in respect of the assignment of the tenancy rights to Shop No. GB09, within sixty (60) days of the date of this Judgment.
The 1st Respondent shall pay to the Appellant the costs of this appeal and the costs of the proceedings before the Tribunal.
A landlord cannot generate ambiguity through deliberate inaction and then seek to benefit from that self-created ambiguity to nullify a tenancy.
A continuing wrong does not moot a claim; it amplifies it.
A landlord who re-lets premises to a third party whilst purporting to have repossessed from an existing tenant, without the authority of a Tribunal order, commits an unlawful eviction regardless of the landlord's reasons or frustrations.
Issues in the judgment
#Timeline anomaly: written submissions are dated after the stated delivery date of the judgment (submissions dated 21st November 2025 and 16th February 2026, judgment delivered 19th June 2026 - internally consistent, but the appeal filed 27th March 2025 and Ruling of 14th March 2025 vs a 2026 delivery date is noted; no internal contradiction found)
The case number of the appeal itself is not stated anywhere in the judgment; only the Tribunal case number (E1234 of 2024) appears
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diriye v Silver Dash Ltd & another (Environment and Land Appeal E061 of 2025) [2026] KEELC 3813 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal filed 27th March 2025 against Tribunal Case No. E1234 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3813/eng@2026-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.