Alaska Village Ltd v Gitonga & another (Sued as the Administrators of the Estate of Dorcas Nyawira Gitonga) (Environment and Land Appeal E058 of 2026) [2026] KEELC 4556 (KLR)
The bottom line
#Kenyan tenants who stay on after their lease ends cannot claim Rent Tribunal protection or block eviction, a Nairobi court has ruled.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether after the expiry of the lease on 1st December 2025, there existed a controlled tenancy within the meaning of Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301
- 2.Whether the chief magistrates court has jurisdiction to entertain the pleadings in Milimani CMELC No E1156
- 3.Whether injunctive orders should issue (prima facie case, irreparable injury, balance of convenience)
- 4.Whether a stay of proceedings in the lower court should issue
Key legal issues
#Whether a controlled tenancy arose after expiry of the lease on 1 December 2025
No controlled tenancy existed; the landlords effectively and severally communicated non-renewal and demanded vacant possession, and refunded rents, so the Appellants' continued occupation was illegal
The court examined Section 2 of Cap 301's definition of a controlled tenancy and the correspondence: the 7th October 2025 letter of non-renewal, the 4th December 2025 letter asking the Appellants to vacate and not pay rent, and the 15th December 2025 demand for vacant possession. The Respondents refunded rents paid despite instructions not to pay and filed suit on 19th December 2025, showing no intention to renew. With no agreement between the parties, the definition under Section 2 was not met.
Whether the Chief Magistrate's Court had jurisdiction over Milimani CMELC No E1156 of 2025
Yes; with no controlled tenancy and the BPRT having divested itself of jurisdiction over the Appellants' claim in BPRT E049 of 2026, the Chief Magistrate's Court had jurisdiction to entertain the Respondents' eviction proceedings
Jurisdiction flows from the existence of a controlled tenancy conferring exclusive jurisdiction on the Business Premises and Rent Tribunal under Cap 301. Having found no controlled tenancy, and noting that the tribunal had set aside the orders the Appellants obtained there, the statutory bar on the magistrate's court fell away. The court applied the Owners of the Motor Vessel 'Lillian S' exposition of jurisdiction.
Whether temporary injunctive orders should issue pending the appeal
No; the Appellants failed to establish a prima facie case with a probability of success, and having failed on the first Giella condition, irreparable injury and balance of convenience also did not favour them
Applying Giella v Cassman Brown, the court held that illegal occupation gives the Appellants no rights to protect; indeed they infringe the Respondents' proprietary rights. Damages could compensate them as the business can relocate. On balance of convenience, relying on Amir Suleiman v Amboseli Resort, the lower risk of injustice lies in refusing the injunction since the Respondents cannot use their premises while the Appellants remain.
Whether proceedings in the lower court should be stayed pending appeal
No; stay of proceedings is exceptional and no exceptional circumstances were shown
The court exercised its discretion judiciously, noting expeditious disposal is a right of every party. Relying on Kenya Wildlife Service v James Mutembei, stay of proceedings is an exceptional remedy with potential to infringe the right to a fair and prompt hearing, and the bar is high. The jurisdictional ground of appeal had already been determined against the Appellant, leaving no basis for a stay.
Legal principles established
#- Continued occupation of premises after effective, several communications of non-renewal and demand for vacant possession does not create a controlled tenancy under Section 2 of Cap 301; there must be an agreement or consensual relationship to fall within the definition
- Once no controlled tenancy exists and the Rent Tribunal has stripped itself of jurisdiction, the Chief Magistrate's Court has jurisdiction to entertain eviction proceedings
- All three Giella conditions must be present for an interlocutory injunction
- Stay of proceedings is an exceptional remedy granted only in exceptional circumstances
Court orders
#- 1.The Notice of Motion application dated 1st April 2026 is dismissed in its entirety for lack of merit
- 2.The Applicants to bear the costs, costs to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Milimani
- Milimani CMELC No E1156 of 2025
- Jurisdiction invoked
- Appellate/interlocutory jurisdiction of the Environment and Land Court over the appeal from the Chief Magistrate's Court (Land and Environment) in Milimani CMELC No E1156 of 2025
Relief refused
#Temporary injunction restraining eviction, locking, sealing, barricading or interference with possession of LR No 209/37/366/7
No prima facie case; the Applicants' continued occupation after the lease expired on 1 December 2025 was illegal and there are no rights to be protected
Order maintaining status quo on the suit premises
Falls with the injunction; no prima facie case established
Stay of proceedings in Milimani CMELC No E1156 of 2025
No exceptional circumstances warranting the exceptional remedy of stay of proceedings
Costs
The Applicants (Appellant) to bear the costs; costs to be in the cause.
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 Notice of Motion application dated 1st April 2026 is hereby dismissed in its entirety for lack of merit.
The Applicants to bear the costs will be in the cause.
There being a clear indication of no intention to renew communicated severally by the Respondents, the continued occupation of the Applicants in the premises was illegal and as such cannot ride on the argument that they are controlled tenants under Cap 301 as there was no agreement at all between the parties to fall under the definition of section 2 as above.
The three conditions set out in Giella (supra), need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction.
The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.
Jurisdiction is everything. Without it, a court has no power to make one more step.
Issues in the judgment
#The judgment records the application as filed by the singular 'Appellant' but repeatedly refers to 'Appellants' and 'Applicant(s)' interchangeably, and the supporting affidavit is sworn by Anita Moraa Ratemo for 'the Appellants'; the number and identity of parties is not clearly stated.
The Respondent filed a replying affidavit sworn by Peninah Waithera Gitonga, but the judgment does not identify the second Respondent or specify the case number of the appeal in which the application is brought.
The costs order is grammatically garbled: 'The Applicants to bear the costs will be in the cause' - it combines an order that the Applicants bear costs with a 'costs in the cause' formulation, leaving ambiguity as to whether costs were awarded immediately or deferred.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alaska Village Ltd v Gitonga & another (Sued as the Administrators of the Estate of Dorcas Nyawira Gitonga) (Environment and Land Appeal E058 of 2026) [2026] KEELC 4556 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4556/eng@2026-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.