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ELCAllowedELC Appeal No. E102 of 2024

Benjamin Gerishom Murwayi v Translakes Limited & Demigen Auctioneers

Environment and Land Court of Kenya
28 September 2026
1,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Kisumu against a ruling of Hon. C.N.C. Oruo, PM, in Winam PMCC No. E152 of 2022, which upheld a preliminary objection and struck out the Appellant's suit. The dispute arose from a one-year lease of Flat No. D402, L.R. No. 30637, Kisumu, at Kshs. 30,000 monthly rent. After the tenant was moved to Flat No. D301, the landlord demanded Kshs. 74,590 for alleged repairs and instructed the 2nd Respondent auctioneers to levy distress. The Appellant sued for injunction, declarations and general damages. The Respondents objected that only the Rent Restriction Tribunal had jurisdiction over landlord-tenant disputes; the lower court, though the objection was framed under the Rent Restriction Act, applied the controlled-tenancy definition in the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act and struck out the suit. On appeal, the ELC held both statutes inapplicable: the premises were a dwelling house, not business premises, and the Kshs. 30,000 rent exceeded the Kshs. 2,500 ceiling in section 2(1) of the Rent Restriction Act, the agreed rent being presumed the standard rent absent tribunal assessment. Relying on Hassan Ali Joho, Mukisa Biscuit and Oraro v Mbaja, the court found the objection had no merit, set aside the ruling, dismissed the preliminary objection, reinstated the suit for hearing on merit, and awarded the Appellant the costs of the objection and of the appeal. The Respondents did not file submissions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the lower court erred in upholding the Respondents' preliminary objection and striking out the Appellant's suit

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 8
02

Whether the preliminary objection was a true point of law

Holding

The objection had no merit; jurisdiction was determinable on the undisputed terms of the lease, and the lower court erred in upholding it.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.The Appellant's suit in the lower court is reinstated for hearing and determination on merit
  3. 3.The Appellant shall have the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
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

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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.
p. 9Final orders - setting aside the ruling striking out the suit
The Appellant's suit in the lower court is reinstated for hearing and determination on merit.
p. 9Reinstatement of the suit
The monthly rent of Kshs. 30,000/- paid by the Appellant took it out of the Act's application.
p. 8Rent Restriction Act rent ceiling
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.
p. 8Presumption as to standard rent

Issues in the judgment

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minor

Date discrepancy on the preliminary objection

minor

Judgment delivery date of 2026 appears inconsistent with the 2024 appeal and 2025 submissions

minor

Lower court case number cited inconsistently as PMCELC and PMCC

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, "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.