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ELCAllowedNaivasha ELCLA No. E003 of 2025· [2026] KEELC 4019 (KLR)

Miano & 2 others v Mbaka t/a Branden Junior School (Land Case Appeal E003 of 2025) (Environment and Land) [2026] KEELC 4019 (KLR)

Environment and Land Court of Kenya
2 July 2026
MOM. C. Oundo
8,006 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a Ksh 4.17 million rent award because the Rent Tribunal had no power over an 8-year lease that required arbitration first.

What this practically means

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Executive summary

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This is a first appeal by the Tenants (Charles Kamau Miano, Simon Kimani Kibarabara and Vincent Keraro Osoro) against orders of Hon. Andrew Muma, Member, in Nakuru BPRT No. E132 of 2024, whereby on 30th January 2025 the Tribunal, hearing the Landlady's reference in the Tenants' absence, ordered payment of rent arrears of Kshs. 4,142,188/= and costs of Kshs. 30,000/=. The Appellants attacked the Tribunal's jurisdiction on account of an arbitration clause in the Lease dated 1st May 2021, pleaded res judicata by reference to Naivasha CMC ELC E053 of 2024 (which had referred the dispute to arbitration), alleged a breach of natural justice in being condemned unheard, and challenged the evidentiary basis of the monetary award. The Respondent Landlady defended the Tribunal's jurisdiction under Section 2(1)(b)(ii) of Cap 301, contending the tenancy was a controlled tenancy, that the Appellants had waived the arbitration clause and submitted to the Tribunal's jurisdiction by consent, and that res judicata did not apply since the Naivasha matter was not heard on its merits. Oundo J allowed the appeal on the jurisdictional ground alone. He held that the lease was an 8-year commercial lease containing a forfeiture clause for breach of covenant, and thus was not a controlled tenancy under Cap 301; the Tribunal lacked subject-matter jurisdiction ab initio, which no consent or participation could cure. The arbitration clause made arbitration a condition precedent to litigation. The Tribunal's judgment and all consequential orders were set aside ex debito justitiae, the deposited sum ordered refunded to the Appellants, the dispute referred to arbitration, and costs of the appeal and the Tribunal proceedings awarded to the Appellants.

Key legal issues

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01

Whether the lease constituted a controlled tenancy under Section 2(1)(b)(ii) of Cap 301 conferring jurisdiction on the BPRT

Holding

The lease was not a controlled tenancy; it was an 8-year commercial lease with a forfeiture clause for breach of covenant, falling outside Cap 301, so the Tribunal lacked subject-matter jurisdiction ab initio.

Reasoning

The court read the lease holistically. Clause 4(d)'s 12-month fault-free notice mechanism could have triggered BPRT jurisdiction, but Clause 4(a) was a classic commercial forfeiture clause allowing immediate re-entry for breach (non-payment of rent). Applying South C Fruit Shop, a written lease exceeding five years is excluded from the controlled tenancy definition unless it contains termination otherwise than for breach. The Tribunal therefore acted without jurisdiction.

p. 12
02

Whether the arbitration clause barred the reference to the Tribunal

Holding

Yes. The clause established arbitration as a condition precedent, with courts as 'last option', so the Landlady's reference filed on 28th August 2024 without attempting arbitration was premature and incompetent.

Reasoning

The clause required mutual appointment of an arbitrator 'rather than filing court cases' with courts as 'last option'. The court held this was a mandatory contractual bar and a negative covenant not to sue before arbitration. Party autonomy and Article 159(2)(c) of the Constitution require enforcement of such bargains. Section 7 of the Arbitration Act allowed interim protective measures without abandoning arbitration, but the Landlady filed a full substantive reference seeking final monetary judgment instead.

p. 14
03

Whether the Appellants' consent compromising the preliminary objection could confer jurisdiction on the Tribunal

Holding

No. The consent of 13th December 2024 was a legal nullity incapable of conferring subject-matter jurisdiction on a statutory tribunal.

Reasoning

Relying on Samuel Kamau Macharia v Kenya Commercial Bank, jurisdiction flows from the Constitution or legislation and cannot be conferred by consent, acquiescence or procedural default. Since the Tribunal lacked capacity under its parent Act, the consent order was an attempt to confer jurisdiction by acquiescence and could not authorise the multi-million-shilling monetary award of 30th January 2025.

p. 15

Legal principles established

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  • Where a lease exceeds a term of five years and retains a right of re-entry and forfeiture for breach of covenant, it falls outside the protective framework of Cap 301 and is not a controlled tenancy
  • A statutory tribunal's lack of subject-matter jurisdiction cannot be cured by consent, waiver, acquiescence or participation of the parties
  • An arbitration clause making arbitration a condition precedent to litigation renders a suit filed before arbitration premature and incompetent

Court orders

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  1. 1.The Judgment and all consequential orders of the Trial Court/Tribunal delivered on 30th January 2025 in BPRT No. E132 of 2024 are hereby set aside ex debito justitiae
  2. 2.The sum of Ksh 4,172,188/= shall be refunded and released forthwith to the Appellants together with any accrued interest thereon
  3. 3.The dispute is hereby referred to Arbitration in strict compliance with the dispute resolution clause of the Lease Agreement dated 1st May 2021
  4. 4.The costs of this Appeal and of the proceedings in the Tribunal below are awarded to the Appellants
On appeal from
Business Premises Rent Tribunal (Nakuru BPRT Case No. E132 of 2024)
BPRT No. E132 of 2024
Jurisdiction invoked
Appeal from the Business Premises Rent Tribunal under the Landlords and Tenants (Hotels, Shops 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, "Miano & 2 others v Mbaka t/a Branden Junior School (Land Case Appeal E003 of 2025)  (Environment and Land) [2026] KEELC 4019 (KLR)", Case Analysis (2026). Naivasha ELCLA No. E003 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4019/eng@2026-07-02

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