Wairiuko v Lumumba

prayed for appeal to be allowed , The ruling of the Honourable Tribunal in Tribunal Case No. E044 of 2024 be set aside and substituted with an order striking out the suit with costs to the Appellant, Any other relief that this Honourable Court may deem t to grant in the interest of justice.” 4. On 28.07.2026, the court with the consent from the parties admitted the appeal for hearing and directed that the matter be canvassed by way of written submissions. Appellant led her submissions dated August 17,2026 while the Respondent led her submissions dated 5th September, 2026. 5. The Appellant, submitted that she was never the Respondent’s landlady, had no written or oral tenancy agreement, owned no interest in the suit premises, received no rent, employed no agent, and neither locked nor instructed anyone to seal the suit premises. 6. The appellant urged that The threshold question presented before this court is whether a controlled tenancy existed to confer subject-matter jurisdiction upon the Business premises rent tribunal under Section 2(1) the Act. Citing Selle & Another v. Associated Motorboat Co. Ltd & Others [1968] EA 123 and Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR, the Appellant urged that a rst appellate court (this court) is duty-bound to re-evaluate, re-assess, and re-analyze the entire record of evidence to arrive at its own independent conclusion. 7. The Appellant submitted that legal burden of proof rested strictly on the Respondent to establish the landlord-tenant relationship on a balance of probabilities which the Respondent failed to produce any tenancy agreement, rent schedule, rent receipts, rent demands, rent accounts, or proof of authorization from the property owner. The appellant distinguished the case of Wambui v. Muchiri [2025] KEBPRT 216 (KLR), Ooko v. Mairu [2022] KEBPRT 737 (KLR), and Wambugunda v. Njiru [2025] KEBPRT 304 (KLR), where landlord status was armed due to proven, active receipt of rent, which the Appellant noted such evidence did not exists in the present case. Relying on Kiliungu v. Mutwiri [2024] KEBPRT 189 (KLR), the Appellant urged that without a landlord -tenancy agreement or assignment of rights and liabilities, landlord status cannot be presumed. 8. The Appellant contended that proof of a money transfer is not proof of rent, and proof of rent does not constitute proof of statutory landlord entitlement. Consequently, the Appellant prays that the appeal be allowed, the Business premises rent tribunal ruling be set aside, the Respondent's claim be dismissed or struck out, and costs of both the appeal and Tribunal proceedings awarded to the Appellant pursuant to Section 27(1) of the Civil Procedure Act (Cap. 21) 2010 and holding in Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2014] eKLR. 9. The Respondent, submitted that as a rst appellate court(this Court) retains unfettered jurisdiction to re-evaluate the factual and legal record and draw independent conclusions as restated in Selle v. Associated Motor Boat Co. [1968] EA 123. However, this authority is exercised with caution, disturbing the trial court’s ndings only where unsupported by evidence or where the court plainly erred as per Peters v. Sunday Post Ltd [1958] EA 424. 10. Further, she urged that under Section 107(1) of the Evidence Act (Cap. 80), the Respondent discharged her initial burden of proving the landlord-tenancy relationship on a balance of probabilities. Additionally, the landlord -tenancy relationship is established by overwhelming, uncontroverted evidence on record. She submitted that non-compliance by the Appellant necessitated police intervention to enforce the Tribunal’s interim unsealing orders. The Respondent produced correspondences with the Appellant concerning tenancy matters, demonstrated continuous occupation from 2018 to 2024, and provided rent payments to the Appellant's instructed agents (Sort masters Investment Ltd). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6087/eng@2026-09-28 2

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11. The respondent urged that the Appellant's reliance on an unveried title deed is legally unsustainable. While citing section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301), that denes a landlord as the person entitled, as between themselves and the tenant, to the rents and prots of the premises, making registered title ownership unnecessary as per Ramadhan Mohamed Ali v. Hashim Salim Ghanim [2016] eKLR. She submitted the Appellant merely tendered a title deed in a third party's name without calling the owner, adducing explanatory adavit evidence, or establishing its nexus to the suit premises. Where title or ownership is in dispute, merely dangling a title document without proving the legality and connection of its acquisition is insucient as in the Munyu Maina v. Hiram Gathiha Maina [2013] eKLR. 12. The Respondent averred establishment of a landlord-tenant relationship on a balance of probabilities and prays that this Appeal be dismissed with costs, the Tribunal’s Ruling dated February 21, 2025, be upheld in its entirety, and the matter be remitted to the Business Premises Rent Tribunal for determination on its merits regarding illegal eviction, recovery of seized goods, and general damages. 13. Having considered the pleadings (adavit evidence on record) submissions and the record of appeal, the following issues arise for determination: - 14. 1. Whether a controlled tenancy relationship existed between Appellant and Respondent. 2. Whether the Tribunal had jurisdiction to entertain the matter. 3. Whether the Appellant is entitled to the reliefs sought. 4. Who should bear the costs of the appeal? As a rst appellate court, will only interfere with the decision of the Tribunal only where it is demonstrated that the Tribunal misapprehended the evidence, applied the wrong principles or exercised his discretion as result there has been misjustice as laid out in the case of Mbogo & Another Vs Shah (1968) EA 93 and restated In The Case of Selle &Another Vs Associated Motorboat Company 1968) EA123. (i)Whether a landlord -tenant relationship was established between the Appellant tenants. 15. This issue encompasses Grounds 1, 3, 5, 6, 7 .8 and 9, concerning creation of tenancy agreement between appellant and respondent, the Appellant’s locus standi as landlord and the Appellant’s conduct in that capacity (land lord). 16. The Appellant contends that she is not the owner of the suit premises and therefore could not properly be regarded as the landlord. In support, she produced a certicate of title showing Georey Njuge Karani as the registered proprietor (annexture eww1) - 17. Ownership of the premises is not, in itself, a determinant factor for qualication as a landlord under section 2 of the Landlord and Tenants (Shops, Hotels and Catering establishments) Act (cap 301). The provision denes a landlord as the person for the time being entitled, as between herself and the tenant, to the rents and prots payable under the tenancy. The denition is therefore concerned with the legal relationship between the parties rather than registration of title alone. Likewise, a tenant is the person for the time being entitled to the tenancy, whether or not in occupation, and includes a subtenant as restated in the case of Lotfa Resort Diani Ltd & another v Wanja (Civil Appeal E002 of 2025) [2026] KEELC 2967 (KLR) where the court stated as follows: “ This provision is deliberately broad. Parliament recognized that many business premises, particularly hotels and catering establishments, operate under informal arrangements. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6087/eng@2026-09-28 3

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Thus, the absence of a written lease does not negate the existence of tenancy. What matters is whether the essential ingredients of tenancy—identiable landlord, identiable tenant, identiable premises, and payment of rent—are present. 18. Further, Court of Appeal in Ramadhan Mohamed Ali v Hashim Salim Ghanim [2016] KECA 609 (KLR) expressly armed that:“ a landlord under the Act need not be the registered owner of the demised premise or holder of a grant of representation of the estate of the registered owner, but rather, is the person entitled to the rent and prots payable under the terms of the tenancy. As for the other two issues, the Court found that they were never raised, canvassed or decided by the Tribunal.” 19. The Tribunal in disposing of the preliminary objection and notice of motion dated 22.10.2024 and 7.11.2024 was guided by the case of Mustafa Abdullahi Omar t/a M Dalmar Trading Company Limited v Jeanette Wanjiru Gatehi & another [2021] KEBPRT 108 (KLR) in nding and holding that a landlord for purposes of Cap. 301 need not necessarily be the registered owner of the premises but a person entitled to rents and prots arising from the tenancy. 20. Pursuant to sections 107, 108 and 109 of the Evidence Act,(cap 80 laws of Kenya) the burden of proving a fact rest upon the party asserting it on a balance of probabilities. As stated in the case of Githaiga vs Mwangi (Civil appeal E064 of 2022) [2024] where the court held that the initial burden of proof rests with the plainti but may shift to the defendant on the circumstances of each case and evidence adduced/ tendered. 21. In the present case, the Respondent asserted that she had been the Appellant’s tenant since 2018, occupying Shop No. 1, Hephzibah House, Witeithie, Kiambu County. She produced evidence of her dealings with the appellant including matters relating to access, payment of rent, maintenance and payment of utilities. The respondent further stated that, on the Appellant’s instructions, rent was paid to her appointed agent (Sort masters Investment Ltd). The Respondent produced a Kenya power lighting company ltd account number 24512931, which she stated was linked to the suit premise, together with a billing statement for the same account registered in the name of Eva Wangechi Wairiuko, the Appellant herein. 22. The Respondent, in opposition of the motion dated 7.11.2024 annexed to her replying adavit an mpesa transaction statement conrming that she paid rent to the account supplied to her by the Appellant namely Sort Masters Investment Ltd. The Respondent’s evidence that the agent subsequently informed her that the Appellant had instructed it to stop collecting rent was not controverted by appellant. Furthermore, The Appellant did not challenge the evidence that electricity bills pertaining the suit premise were paid through her account. she did not challenge the evidence by respondent that she gave out the name of sort master ltd to the respondent for payment of rent. 23. The Court in Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] KEHC 1362 (KLR) stated that uncontroverted evidence need to prove liability of the person alleged to be in default for interrogation by the trial court to ascertain if the plainti has discharged the burden of proof on a balance of probabilities. 24. Upon interrogating the conduct of Appellant, Respondent and agent of appellant(Francis Kinyua ) who issued the notice to vacate the suit premises dated 5th February 2024 as served upon the respondent and responded to on 6th May 2024, the basis of the reference before the tribunal , coupled with provision of Kenya power lighting and company limited meter number in name of appellant for https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6087/eng@2026-09-28 4

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payment of electricity bills, rent payment point and the holding by the court of appeal in Nandlal Jivraj Shah & 2 others (all trading as Jivaco Agencies v Kingsher Properties Limited [2015] KECA 176 (KLR) stated:“ Similarly, the proposition that a controlled tenancy continues to exist merely because the appellants are still in occupation of the premises is, with due respect to learned counsel, preposterous. No provision of law creates controlled tenancies by virtue of mere occupation of premises and with non-payment of rent no less! The fact that the respondent is yet to evict the appellants does not serve to resurrect a controlled tenancy which has already run its course and been terminated. For the above reasons, the authorities of Msa HCCC No. 363 of 2002; Mwai Limited & another v. Bridge-up Container Services Limited, Msa HC Misc. Appl No. 27 of 2010; and R v. The Chairperson Business Premises Rent Tribunal ex parte Kenya Safari Lodges and Hotels Limited & another (citation) as cited by the appellant in support of this proposition fail to nd any persuasive application in this appeal. "Mere occupation of the premise by a tenant does not constitute controlled tenancy but payment of rent. 25. The court nds that production of the title deed, perse, did not displace landlord tenancy relations between the appellant and respondent. 26. The court nds that The Respondent’s evidence remained substantially uncontroverted and on a balance of probabilities, established that the Appellant was the person entitled, as between the parties, to the rents and prots arising from the tenancy hence the landlord of the respondent. 27. Accordingly, this Court nds no basis to fault the Tribunal’s nding that the Appellant was the landlord of the respondent for purposes of this case. Tribunal properly directed itself on the applicable law and evaluated the evidence before it. 28. There is no basis to interfere with the nding of the learned chair/member of the tribunal in regard to grounds 1, 3, 5,6,7,8 and 9 of the appeal which are disallowed. (ii)Whether the Business Premises Rent Tribunal had jurisdiction to entertain the matter. 29. The foregoing issue encompasses Grounds 2 and 4 of the Memorandum of Appeal, which challenge the Tribunal’s jurisdiction to adjudicate the matter. The Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) expressed itself as follows on the issue of jurisdiction: “ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. ” 30. The court in Pritam v. Ratilal and Another Nairobi HCCC No. 1499 of 1970 [1972] EA 560 stated as follows: “ Therefore, the existence of the relationship of landlord and tenant is a pre-requisite to the application of the Act and where such relationship does not exist or it has come to or has been ended, the provisions of the Act will not apply. The applicability of the Act is a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6087/eng@2026-09-28 5

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condition precedent to the exercise of jurisdiction by a Tribunal; otherwise, the Tribunal will have no jurisdiction. There must be a controlled tenancy as dened in section 2 to which the provisions of the Act can be made to apply. Outside it, the Tribunal has no jurisdiction.” 31. It follows that the Tribunal could only assume jurisdiction upon establishing a landlord-tenant relationship falling within the denition of a controlled tenancy under section 2 of the landlord & Teenant (shops, hoteliers and catering establishments) Act (cap 301 laws of Kenya). Having so found that a relationship existed and that the tenancy was controlled, the Court now considers the statutory basis upon which the tribunal derived its jurisdiction to entertain the dispute. 30. Section 12 landlord and Tenants (shops, hoteliers and catering establishments) Act under subrule (4) provides that: “ (4) 30. In addition to any other powers specically conferred on it by or under this Act, a Tribunal may investigate any complaint relating to a controlled tenancy made to it by the landlord or the tenant, and may make such order thereon as it deems t” Further, the court in Re Hebtulla Properties Ltd [1979] KEHC 39 (KLR) stated: “ The tribunal is a creature of statute and derives its powers from the statute that creates it. Its jurisdiction being limited by statute it can only do those things, which the statute has empowered it to do since its powers are expressed and cannot be implied” 30. . By dint of section 12 of the Act, This Court is satised that the Tribunal was properly seized of jurisdiction to dispose of the dispute and rightly held so while dismissing the preliminary objection dated 22.10.2024 and the notice of motion dated 7.11.7.11.2024. averment by the appellant that the tribunal had no jurisdiction to entertain the matter is disallowed. 31. Who should bear the costs of the appeal? On costs, the Court is guided by Rai & 3 Others v Rai & 4 Others [2014] KESC 31 (KLR), where the Supreme Court held that costs are discretionary but ordinarily follow the events. Accordingly, the Respondent shall have the costs of the Appeal. Final Orders. 30. Accordingly, the Court hereby nds the appeal not merited hence dismissed with costs to the Respondent. i) The ruling and order of Hon Cyprian Mugambi Nguthari /Chairperson, Business premises tribunal in (tribunal case number BPRT /E447/2024 21.2.2025) is upheld. iii) The matter is referred back to the Business Premises Rent tribunal for the hearing and disposal of the pending reference and any pending matters not yet dealt with by the tribunal. It is ordered accordingly. DATED, SIGNED AND DELIVERED ON THIS 28TH DAY OF SEPTEMBER 2026 AT VOI HON. J. A. ORWA JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6087/eng@2026-09-28 6

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Ms. Kadenge for the Appellant Mr. Nandi for the Respondent Mr. Letisiah - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6087/eng@2026-09-28 7

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