Benjamin Gerishom Murwayi v Translakes Limited & Demigen Auctioneers
The bottom line
#Kenya's Environment and Land Court reinstated a tenant's lawsuit, ruling that rent tribunals cannot hear disputes over residential units renting above Kshs. 2,500 monthly.
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 lower court erred in upholding the Respondents' preliminary objection and striking out the Appellant's suit
Key legal issues
#Whether the dispute between landlord and tenant of a residential apartment fell within the jurisdiction of the Rent Restriction Tribunal or the Landlord and Tenant tribunals
Neither statute applied: the premises were not business premises under Cap 301, and the monthly rent of Kshs. 30,000 exceeded the Kshs. 2,500 ceiling under Cap 296, so the magistrates' court had jurisdiction.
The lease was over a dwelling house at a monthly rent of Kshs. 30,000. The lower court wrongly imported the definition of a controlled tenancy from the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, which covers business premises, not residential dwellings. Under section 2(1) of the Rent Restriction Act, dwelling houses with standard rent above Kshs. 2,500 are excluded; the agreed rent is presumed the standard rent absent tribunal assessment.
Whether the preliminary objection was a true point of law
The objection had no merit; jurisdiction was determinable on the undisputed terms of the lease, and the lower court erred in upholding it.
Applying Hassan Ali Joho and Oraro v Mbaja, the court tested whether the objection raised a pure point of law. Here the undisputed facts (dwelling house, one-year term, Kshs. 30,000 rent) showed neither the Rent Restriction Act nor Cap 301 applied, so the objection lacked any legal foundation and should have been dismissed.
Legal principles established
#- A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained.
- The rent agreed by the parties must be assumed to be the standard rent unless a tribunal has determined or assessed a different standard rent.
- The Rent Restriction Act does not apply to dwelling houses whose standard rent exceeds Kshs. 2,500 per month.
Court orders
#- 1.The ruling and orders of the lower court of 17th March 2023 allowing the preliminary objection and striking out the suit are set aside and substituted with an order dismissing the Respondents' preliminary objection with costs to the Appellant
- 2.The Appellant's suit in the lower court is reinstated for hearing and determination on merit
- 3.The Appellant shall have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Winam Principal Magistrate's Court (PMCC No. E152 of 2022)
- Winam PMCELC No. E152 of 2022
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over rulings of the magistrates' court (Environment and Land Court Act)
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.
The ruling and orders made by the lower court on 17th March 2023 allowing the Respondents' preliminary objection dated 14th September 2022 and striking out the Appellant's suit are set aside and substituted with an order dismissing the Respondents' preliminary objection with costs to the Appellant.
The Appellant's suit in the lower court is reinstated for hearing and determination on merit.
The monthly rent of Kshs. 30,000/- paid by the Appellant took it out of the Act's application.
The rent agreed by the parties must be assumed to be the standard rent unless the tribunal determined or assessed a different rent as the standard rent.
Issues in the judgment
#Date discrepancy on the preliminary objection
Judgment delivery date of 2026 appears inconsistent with the 2024 appeal and 2025 submissions
Lower court case number cited inconsistently as PMCELC and PMCC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Gerishom Murwayi v Translakes Limited & Demigen Auctioneers", Case Analysis (2026). ELC Appeal No. E102 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5906/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.