Wachira v Murithi (Tribunal Case E847 of 2024) [2025] KEBPRT 409 (KLR) (16 September 2025) (Ruling)
Neutral citation:
[2025] KEBPRT 409 (KLR)
Republic of Kenya
Tribunal Case E847 of 2024
Gakuhi Chege, Chair & J Osodo, Member
September 16, 2025
Between
David Wachira
Landlord
and
Misheck Mwangi Murithi
Tenant
Ruling
A. Introduction and Parties Pleadings
1.This matter arises from the ApplicantTenant’s Notice of Motion dated 23rd April 2025 brought under certificate of urgency. The application seeks to set aside orders issued by this Tribunal on 5th November 2024 which directed the Applicant to pay Kshs.386,736= as rent arrears.
2.The Applicant contends that the Tribunal acted irregularly by issuing final orders without hearing him or determining his Preliminary Objection dated 30th October 2024. He further maintains that the tenancy relationship between the parties ceased on 24th April 2024, thereby ousting the Tribunal’s jurisdiction.
3.The Application is supported by the Affidavit of Misheck Mwangi Murithi who avers that he was condemned unheard, contrary to the Constitution and principles of natural justice.
4.The Respondent, David Wachira, opposed the Application through his Replying Affidavit. He asserts that the Tribunal properly exercised jurisdiction because the Applicant retained constructive possession of the premises by locking them and preventing re-entry. He maintains that the arrears of Kshs.386,736= were properly computed and remain payable.
5.The parties filed detailed submissions supported by case law and statutory provisions which we have carefully considered.
B. Issues for Determination
6.Having considered the pleadings, affidavits, and submissions, the following issues arise for determination:a.Whether the Tribunal had jurisdiction to issue the orders of 5th November 2024;b.Whether the Applicant was denied the right to be heard contrary to the Constitution and principles of natural justice;c.Whether the orders of 5th November 2024 should be set aside; andd.Who should bear the costs of this Application?
C. Analysis and Legal Principles
7.We shall now proceed to analyze each of the above issues with reference to statutory law and decided cases.
i. On Jurisdiction
8.Jurisdiction is everything. Without it, a court must down its tools. This cardinal principle was stated in Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Nyarangi JA observed that a court without jurisdiction cannot make one more step.
9.Section 2 and 3 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301 Laws of Kenya define and regulate controlled tenancies. The Tribunal’s jurisdiction is limited to subsisting landlord-tenant relationships.
10.The Applicant has demonstrated through affidavit evidence that the tenancy was mutually terminated on 24th April 2024. He relies on a settlement agreement which is not disputed by the Respondent.
11.In Kenya Ports Authority v Modern Holdings (EA) Limited [2017] eKLR, the Supreme Court emphasized that jurisdiction flows from the law and cannot be inferred or implied by the conduct of the parties.
12.Accordingly, if no tenancy existed at the time the reference was filed, the Tribunal would have acted without jurisdiction in entertaining the Respondent’s complaint filed on 30th September 2024.
13.The Respondent argues that despite termination of tenancy, the Applicant retained constructive possession by locking the premises. Jurisprudence has established that possession may indeed sustain a landlord-tenant relationship. However, such possession must be real and accompanied by the enjoyment of premises, not a mere lock without occupancy.
14.The Tribunal must distinguish between wrongful detention of premises, which is a matter of trespass, and tenancy disputes which fall under Cap 301. Once a tenancy has ended, any continued possession amounts to trespass which is a cause of action outside the jurisdiction of this Tribunal.
15.In Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the Supreme Court stated that a court of law can only exercise jurisdiction as conferred by the Constitution or statute. To assume jurisdiction where none exists is to act in vain.
16.We therefore find that the Applicant’s Preliminary Objection on jurisdiction was merited and should have been determined before issuance of substantive orders.
ii. On the Right to be Heard
17.Article 50(1) of the Constitution guarantees the right to a fair hearing. The record demonstrates that the Applicant’s pleadings, including his Preliminary Objection and Replying Affidavit, were not considered before final orders were issued on 5th November 2024.
18.The Court of Appeal in Mbaki & Others v Macharia & Another [2005] 2 EA 206 emphasized that the right to be heard is fundamental and cannot be derogated from. Similarly, in Onyango Oloo v Attorney General [1986-1989] EA 456, it was held that denial of the right to be heard renders a decision null and void.
19.The principle of audi alteram partem is entrenched in common law and natural justice. In Pashito Holdings Ltd & another v Paul Nderitu Ndungu & 2 others [1997] eKLR, the court reiterated that no person should be condemned unheard.
20.It is therefore evident that the Applicant was condemned unheard. Such conduct offends both the Constitution and principles of natural justice, warranting the setting aside of the impugned orders.
iii. On costs
21.Costs of every action before this Tribunal are in its discretion under section 12(1)(k) of Cap 301. Although costs naturally follow the event, we note that the question as to whether the Applicant owes rent arrears to the Respondent has not been determined on merit and will have to be litigated elsewhere, we shall direct each party to meet own costs of the case.
D. Final Orders
22.For the reasons set out above, we make the following orders:a.The orders of this Tribunal issued on 5th November 2024 directing the Applicant to pay Kshs.386,736= and all consequential orders thereto are hereby set aside.b.The reference dated 26th September 2024 is hereby dismissed for want of jurisdiction.c.Each party shall bear own costs of the case.It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF SEPTEMBER 2025HON. GAKUHI CHEGE - (PANEL CHAIRPERSON)BUSINESS PREMISES RENT TRIBUNALHON. JOYCE AKINYI OSODO - (PANEL MEMBER)In the presence of: -Onkangi for applicanttenantMs.Mphande holding brief for Mr. Macharia for Landlordrespondent