Wonder Rose Limited & Fredrick Ouya v Nelly Kiende & Alex Mosiere

context of a tenancy agreement dated 28th September 2022. 2. The Appellants' position before the Tribunal was that the tenancy had been terminated through a 30 days' notice dated 23rd February 2024. The Respondents, however, approached the Tribunal on 4 th April 2024, alleging that the 2nd Appellant had entered the premises on 3 rd April 2024 and removed household items without their consent. They sought, among other reliefs, orders restraining interference with their occupation and compelling the reopening of the premises and restoration of the household goods. 3. On 5th April 2024, the Tribunal considered the application ex parte and granted orders directing the Appellants to reopen the premises and reinstate the Respondents together with their household goods. The Tribunal also restrained the Appellants, their servants, employees or agents from attaching, selling, disposing of or otherwise interfering with the Respondents' household goods or tenancy pending determination of the suit, and directed payment of any outstanding rent arrears within thirty days. 4. On 8th April 2024, the Appellants entered appearance and filed, inter alia, a Notice of Preliminary Objection, Certificate of Urgency and Notice of Motion challenging the Tribunal's jurisdiction and seeking stay and setting aside of the orders of 5 th April 2024. On 9th April 2024, the Tribunal issued further orders, and on 12 th April 2024 directed that warrants issue against the Appellants and that the O.C.S. Buruburu Police Station enforce the orders. Memorandum of Appeal ELC APPEAL NO. 087 OF 2024 2

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5. Being dissatisfied with the said orders, the Appellants lodged a Memorandum of Appeal dated 28 th June 2024. In the said Memorandum, the Appellants fault the Tribunal for issuing final and subsequent ex parte orders without affording them an opportunity to be heard; for assuming and exercising jurisdiction despite their contention that the landlordtenant relationship had already terminated upon expiry of the 30 days' notice dated 23rd February 2024; for issuing warrants of arrest against them without a hearing; and for allegedly disregarding the application and pleadings they had filed on 8th April 2024 while continuing to issue further ex parte orders. 6. On the basis of those grounds, the Appellants pray that this Court stay and set aside the Tribunal's ex parte orders dated 5th April 2024 and 9th April 2024, set aside the Tribunal proceedings, and award the costs of the appeal. Submissions 7. Despite service, the Respondents did not enter appearance or file submissions in opposition to the appeal. The appeal was consequently canvassed by way of written submissions, with only the Appellants placing submissions before the Court. In their written submissions dated 9 th July 2026, the Appellants maintained that the central question was whether the Rent Restriction Tribunal had jurisdiction to entertain the dispute and issue the impugned ex parte orders. They argued that the agreed monthly rent under the tenancy agreement dated 28 th September 2022 was Kshs. 24,000, which, in their view, placed the premises outside the statutory jurisdiction of the Rent Restriction Tribunal under Section 2(1) of the Rent Restriction Act. ELC APPEAL NO. 087 OF 2024 3

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8. The Appellants further submitted that the tenancy had in any event been terminated through a 30 days' notice dated 23rd February, 2024, and that upon expiry of the notice, the landlord-tenant relationship ceased to exist. They contended that the Tribunal nevertheless proceeded to issue ex parte orders despite the alleged absence of jurisdiction. In support of their position, the Appellants relied on Shah & Another -Vs- Aggarwal & Another in Civil Appeal No. 60 of 1981, for the proposition that where rent has been voluntarily agreed between the landlord and tenant and does not fall within the statutory definition of standard rent, the Rent Restriction Tribunal lacks jurisdiction to entertain the dispute. 9. The Appellants also relied on Republic Vs. Rent Restriction Tribunal, exparte Simon Ngure Ngatio & Another {2014} eKLR, where the Court held that the Rent Restriction Tribunal lacked jurisdiction to determine a dispute involving premises whose standard rent was Kshs. 8,500/=. On that basis, the Appellants urged the Court to find that the Tribunal acted without jurisdiction, set aside the ex parte orders dated 5 th April, 2024 and 9th April, 2024, and set aside the Tribunal proceedings with costs. Issues for Determination 10. Having considered the Memorandum of Appeal, the Record of Appeal and the Appellants’ submissions, the Court finds that the appeal raises the following two issues for determination: a) Whether the Rent Restriction Tribunal had jurisdiction to entertain the dispute. ELC APPEAL NO. 087 OF 2024 4

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b) Whether the Tribunal erred in issuing and enforcing the impugned ex parte orders without hearing the Appellants. Analysis and Determination 11. This being a first appeal, this Court is enjoined to reconsider and re- evaluate the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the parties. In Selle -VsAssociated Motor Boat Co. Ltd [1968] EA 123, as restated in Kenya Ports Authority -Vs- Kuston (Kenya) Limited [2009] 2 EA 212, the Court of Appeal stated: “On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 12. Guided by the foregoing principles, I now turn to the issues identified for determination. ISSUE No: 1 Whether the Rent Restriction Tribunal had jurisdiction to entertain the dispute. 13. The Appellants challenged the jurisdiction of the Tribunal on two grounds. First, they contended that the agreed monthly rent of Kshs. 24,000.00 placed the premises outside the scope of the Rent Restriction Act. Second, they argued that the tenancy had already been terminated through the 30 days’ notice dated 23 rd February 2024, and that upon expiry of that notice there was no longer a landlord-tenant relationship capable of sustaining proceedings before the Tribunal. ELC APPEAL NO. 087 OF 2024 5

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14. On the first limb, Section 2(1)(c) of the Rent Restriction Act, Cap. 296 provides that the Act does not apply to dwelling-houses whose standard rent exceeds Kshs. 2,500 per month. The tenancy agreement before the Tribunal disclosed a monthly rent of Kshs. 24,000. The proper approach in such circumstances was explained in Republic -VsChairman Rent Restriction Tribunal; Samuel Joel Kibe & Another [interested parties] Exparte Charles Macharia Mugo [2019] eKLR, where the Court stated: “In my view, it was incumbent upon the Tribunal to determine its jurisdiction before entertaining the dispute. The Tribunal had a duty to make enquiries on the standard rent for the suit property................. It follows therefore that since the applicant was paying a monthly rent of Kshs. 16,000/= per month for the suit property, the premises were prima facie outside the jurisdiction of the tribunal.” The same position was reiterated in Johakim Abayo v Mokua Damacline Nyamoita [2021] eKLR, 15. That principle was again applied in Republic v Tribunal; Commodity World Limited (Exparte); Onsoti & 3 others (Interested Parties) [2022] KEELC 167 (KLR). The Court observed that the disclosed monthly rent of Kshs. 28,000 placed the tenancy prima facie outside the Tribunal’s jurisdiction and held that the Tribunal ought first to have established the standard rent before assuming jurisdiction and issuing ex parte orders. In the present appeal, the Tribunal had before it an agreement showing rent of Kshs. 24,000, yet there is nothing in the record to show that it first assessed or ascertained the standard rent before issuing the impugned orders. ELC APPEAL NO. 087 OF 2024 6

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16. On the second limb, the Appellants’ contention that the tenancy had already been terminated by the notice dated 23rd February 2024 does not, without more, determine the jurisdictional question. The primary issue remained whether the premises were governed by the Rent Restriction Act. Once the agreed rent of Kshs. 24,000 was disclosed, the Tribunal was required to satisfy itself on jurisdiction before proceeding further. Having failed to do so, I find that the Tribunal assumed jurisdiction without first establishing the statutory basis for doing so. The first issue is therefore determined in favour of the Appellants. ISSUE No: 2 Whether the Tribunal erred in issuing and enforcing the impugned ex parte orders without hearing the Appellants 18. The record shows that on 5th April 2024, the Tribunal granted ex parte orders directing, among other things, the reopening of the premises and reinstatement of the Respondents together with their household goods, while restraining interference with the tenancy pending determination of the suit. The matter was thereafter to proceed inter partes. Of particular significance is that on 8th April 2024, the Appellants entered appearance and placed before the Tribunal a Notice of Preliminary Objection, a Certificate of Urgency and a Notice of Motion challenging, inter alia, the jurisdiction of the Tribunal and seeking stay and setting aside of the orders already issued. Those pleadings were therefore on record before the Tribunal made further orders on 9th April 2024. 19. While a court or tribunal is not precluded from granting appropriate interim relief ex parte where the circumstances so demand, such orders are by their nature provisional and must thereafter be subjected to an inter partes hearing. Once the Appellants had appeared and raised a jurisdictional objection, the Tribunal was required to address that ELC APPEAL NO. 087 OF 2024 7

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objection and afford them an opportunity to be heard before proceeding further with the orders. The right to be heard is a fundamental incident of fair adjudication and is particularly important where the jurisdiction of the decision-making body itself has been called into question. 20. The record nevertheless shows that on 9 th April 2024, the Tribunal proceeded to issue further ex parte orders, and on 12 th April 2024 directed that warrants issue against the Appellants and that the O.C.S. Buruburu Police Station enforce the orders. This occurred notwithstanding the Appellants' application and objection dated 8 th April 2024 which were already before the Tribunal. In the circumstances, the Tribunal ought first to have heard and determined the jurisdictional objection before taking further steps to enforce its earlier orders. 21. I therefore find that, quite apart from the jurisdictional defect already identified, the Tribunal erred in proceeding to issue and enforce further ex parte orders without first affording the Appellants an opportunity to be heard on the objection and application which they had placed before it. The second issue is accordingly determined in favour of the Appellants. Disposition 22. Consequently, I make the following orders: a. The appeal is allowed. b. The orders of the Rent Restriction Tribunal issued on 5 th April 2024 and 9th April 2024 in Rent Restriction Tribunal Case No. RRC/E586/2024, together with all consequential orders arising ELC APPEAL NO. 087 OF 2024 8

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therefrom, are hereby set aside. c. The proceedings before the Rent Restriction Tribunal in RRC/E586/2024 are hereby set aside. d. The Appellants shall have the costs of the appeal. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on 24th day of September, 2026. MOHAMMED N. KULLOW JUDGE Judgement delivered in the presence of: Mr. Ngari for the Applicant N/A for Respondent Ms. Mwangi ELC APPEAL NO. 087 OF 2024 Court Assistant 9

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