Buying Property Off-Plan in Kenya

From initial deposit to handover: understanding the risks and safeguards

Off-plan property acquisitions have become increasingly common within Kenya’s growing real estate market. Driven by rapid urbanisation, population growth, and the demand for affordable and modern housing, many purchasers now commit to developments based solely on architectural designs, plans, and statutory approvals before construction is completed.

This article builds on earlier discussions around due diligence in off-plan transactions and examines the key risks associated with such purchases, as well as the legal and practical measures available to safeguard buyers under the Kenyan framework.

 

Key Risks in Off-Plan Property Purchases

While off-plan investments can offer flexible payment terms and potentially lower purchase prices, they are not without significant legal and financial exposure:

1. Dishonest or unregulated developers
Some developers may collect deposits and fail to complete, or even commence, the project, leaving purchasers with limited recourse.

2. Delays in project completion
Delays caused by funding constraints, contractor challenges, or regulatory approvals can substantially affect a buyer’s expectations and financial planning.

3. Compromised construction quality
Completed units may differ from the initial specifications, with lower-quality finishes or unapproved design changes that diminish value.

4. Insolvency or abandonment of the project
Poor financial management or insolvency may result in stalled or abandoned developments, exposing buyers to prolonged uncertainty and loss.

5. Construction timelines affecting investment returns
Extended construction periods can disrupt plans for resale or rental income, particularly where the purchase was intended as an investment.

6. Financing and mortgage approval challenges
Kenyan financial institutions often apply stricter lending criteria for off-plan properties, which may delay or prevent mortgage approvals.

7. Developer-biased sale agreements
Off-plan sale agreements are frequently drafted in favour of developers, with ambiguous completion dates, limited remedies for delay, and weak protections against substandard workmanship.

 

Buyer Protection Measures in Off-Plan Transactions

Given the inherent risks, purchasers must take deliberate steps to protect their interests before committing to an off-plan purchase in Kenya:

1. Title and land ownership verification
The land on which the development is proposed should be registered in the name of the developer or the project entity. Buyers should confirm that the mother title is free from encumbrances such as charges, cautions, caveats, or disputes, in accordance with the Land Registration Act.

2. Due diligence on the developer
Purchasers should assess the developer’s credibility by reviewing past projects, financial standing, corporate structure, and the legal status of its directors, including any pending or concluded litigation.

3. Escrow and structured payment arrangements
Payments should ideally be made through escrow or stakeholder accounts, with funds released only upon certification of completed construction milestones. The final payment should be tied to completion and handover.

4. Independent legal advice
Engaging an advocate to review the sale agreement is critical to ensure that timelines, penalties, defect liability periods, and termination rights are clearly defined and enforceable.

5. Zoning and permitted land use
Buyers must confirm that the registered land use allows for the intended development, particularly for multi-dwelling residential or mixed-use projects, to avoid regulatory breaches or enforcement actions.

6. Verification of statutory approvals
The purchaser should confirm that the developer has obtained all necessary approvals from relevant authorities, including county planning approvals and building permits, to ensure the project is lawful and unlikely to face regulatory delays.

 

Conclusion

In off-plan property transactions, knowledge is the purchaser’s strongest protection. Although such investments offer significant opportunities in Kenya’s real estate sector, they demand thorough due diligence, careful contractual review, and professional legal guidance.

In a dynamic and competitive property market, informed decision-making is not merely advisable—it is essential to safeguarding both capital and expectations.

For further guidance or clarification, kindly reach out through the comments section.

Overview of the Case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696

Court: Court of Appeal for East Africa
Judges: Sir Charles Newbold P., Law JA, Duffus V-P.
Area of Law: Civil Procedure – Preliminary Objections

Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 (EACA).

2. Court & Jurisdiction

Court of Appeal for East Africa — the then highest appellate court for Kenya, Uganda, and Tanzania.
The decision remains binding in these jurisdictions under common law principles and continues to be cited as the leading authority on preliminary objections.

3. Procedural Posture

West End Distributors (Plaintiff) filed a suit alleging trespass by Mukisa Biscuit (Defendant).
Mukisa Biscuit raised a preliminary objection claiming the plaintiff had no cause of action because the land use was legal and permitted.
The trial court dealt with the objection, and the matter proceeded to the Court of Appeal for clarification of the law governing preliminary objections.

4. Facts

• Mukisa Biscuit was in possession of land under an agreement with the government.
• West End Distributors claimed that Mukisa was trespassing and sought injunctions and damages.
• Mukisa Biscuit raised a preliminary objection that the plaintiff’s suit was defective for lack of cause of action, arguing that they had lawful possession.
• The core issue thus became:
  Was the point raised a valid preliminary objection?

The facts were disputed — requiring evidence to be evaluated.

5. Issues

1. What is the proper definition of a preliminary objection in civil procedure?
2. Can a preliminary objection be raised when factual issues remain unresolved?
3. Did the defendant's assertion constitute a valid preliminary objection?

6. Holding

1. A preliminary objection must raise a pure point of law.

2. It must be based on uncontested facts.

3. It cannot be raised when facts must be proved or evidence examined.

4. The objection raised by Mukisa Biscuit was not a proper preliminary objection because it required factual investigation.

7. Rule of Law (The Mukisa Principle)

The Court established the seminal definition of a preliminary objection:

“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit.”
(Sir Charles Newbold P.)

Further:

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law argued on the assumption that all the facts pleaded by the opposite side are correct.”

It cannot be raised if:

• Facts are contested,
• Evidence must be evaluated, or
• The matter requires judicial discretion.

8. Court’s Reasoning

A. Preliminary objections are confined to matters of law

Examples: jurisdiction, limitation, locus standi, res judicata.

These issues can terminate a suit at the outset.

B. Misuse of preliminary objections

The Court criticized advocates for misusing preliminary objections to:

• Delay substantive hearings
• Mask factual disputes as legal issues
• Waste judicial time

C. Need for judicial efficiency

The nature of the objection must be such that if upheld, it concludes the matter without going to evidence.

D. Facts were disputed in this case

The question of whether Mukisa Biscuit’s occupation was lawful required:

• Investigation
• Evidence
• Judicial evaluation

Thus, it was not appropriate for summary disposal.

9. Application to the Case

Because the objection required evidence to determine whether Mukisa’s occupation was legal, it did not meet the threshold for a preliminary objection.
The Court dismissed the objection and emphasized that such matters should proceed to full trial.

10. Ratio Decidendi (Legal Reasoning Binding on Lower Courts)

A preliminary objection must:

1. Be a pure question of law;
2. Assume the facts in the pleadings are correct;
3. Not involve disputed facts or require evidence;
4. Be capable of disposing of the suit entirely.

The objection raised failed this test.

11. Obiter Dicta

Sir Charles Newbold P. commented on:

• The abuse of preliminary objections as a “growing evil” in East African civil litigation.
• The need for discipline and proper use of procedural tools.
• The resemblance of preliminary objections to the historical English demurrer.

12. Significance of the Case

A. Foundational case for civil procedure

This is the leading East African case on preliminary objections.

B. Uniformly applied in Kenya, Uganda, Tanzania

Courts routinely cite this case when parties raise preliminary objections.

C. Ensures proper litigation conduct

It prevents obstruction, frivolous objections, and delay tactics.

D. Forms basis for modern cases

Modern cases like Oraro v. Mbaja (2005) build on the Mukisa principle.

13. Subsequent Influence

The case has been reaffirmed in:

• Oraro v Mbaja (2005) — emphasized factual disputes cannot be preliminary objections
• Avon Cosmetics v Umar Sheikh
• Numerous Kenyan High Court and Court of Appeal decisions

It remains the primary legal test for all preliminary objections in East Africa.

14. Conclusion

Mukisa Biscuit v West End Distributors established the authoritative definition of preliminary objections in East African civil procedure.
The case ensures that preliminary objections are limited to pure questions of law and cannot involve factual inquiries, thus protecting judicial time and preventing abuse of court processes.

It is one of the most cited procedural cases in East African jurisprudence.

 

Overview of the Government Owned Enterprises Act, 2025 (Kenya)

The Government Owned Enterprises Act, 2025 (GOE Act) is a recently enacted statute that fundamentally reforms the manner in which the Government of Kenya owns, controls, and supervises its commercial entities, formerly referred to as state corporations or parastatals. The Act marks a deliberate departure from the traditional parastatal model established under the State Corporations Act (Cap. 446) by introducing a corporate, commercially driven framework grounded in modern company law and corporate governance principles.

At its core, the GOE Act seeks to reposition government-owned commercial entities as profit-oriented, professionally managed enterprises, while preserving the State’s ability to pursue clearly defined public policy objectives in a transparent and accountable manner.

 

Key Legal and Structural Reforms Introduced by the Act

1. Conversion of State Corporations into Public Limited Companies

The Act mandates the reconstitution of existing commercial state corporations into public limited companies (PLCs) incorporated under the Companies Act, 2015 (formerly Cap. 486). This restructuring subjects Government Owned Enterprises (GOEs) to the same legal standards that apply to private companies, including fiduciary duties of directors, financial disclosure obligations, and insolvency rules.

This reform aligns public enterprises with Article 227 of the Constitution, which emphasizes efficiency, transparency, and value for money in public entities, and reduces reliance on bespoke statutory frameworks that previously insulated parastatals from market discipline.

2. Clarification of State Ownership and the Role of the National Treasury

The Act designates the National Treasury as the central shareholder and owner representative of all GOEs. This resolves long-standing ambiguities where line ministries exercised overlapping and often politicized control over state corporations.

By consolidating ownership at the Treasury, the Act promotes:

• Clear separation between ownership, policy formulation, and regulation;
• Professional shareholder oversight; and
• Consistency in performance expectations across GOEs.

This approach reflects international best practice and supports Article 201 of the Constitution, which requires responsible and prudent management of public finances.

3. Independent, Competence-Based Boards and Enhanced Corporate Governance

The GOE Act introduces a skills-based, independent board architecture, reducing ministerial discretion in appointments. Directors are selected based on competence, experience, and integrity, and are subject to defined tenure, performance evaluation, and fiduciary responsibilities under company law.

This governance framework:

• Reinforces the duty of directors to act in the best interests of the company;
• Minimizes political interference and patronage; and
• Enhances accountability consistent with Chapter Six of the Constitution on Leadership and Integrity.

4. Commercial Orientation and Performance Accountability

GOEs are required to operate on a commercially viable and self-sustaining basis, with a clear emphasis on profitability, efficiency, and competitiveness. The Act introduces rigorous performance contracts between the National Treasury and each enterprise, setting measurable financial and operational targets.

Where a GOE is required to undertake Public Service Obligations (PSOs)—such as providing non-commercial services in the public interest—these obligations must be:

• Explicitly defined;
• Costed; and
• Separately funded and ring-fenced.

This mechanism prevents the historical problem of commercial inefficiency being masked by vague public mandates and unchecked exchequer support.

5. Controls on the Establishment of New Government Owned Enterprises

To curb the proliferation and duplication of state entities, the Act requires that any proposed GOE be supported by a feasibility study demonstrating:

• Economic necessity;
• Commercial viability; and
• Absence of overlap with existing entities.

This reform promotes rationalization of the public sector and reinforces fiscal discipline, particularly in light of Kenya’s constitutional commitment to sustainable public debt management.

 

Practical and Legal Implications of the Act

For Government Owned Enterprises

GOEs must now function in a manner comparable to private-sector companies, prioritizing revenue generation, cost control, and long-term sustainability. Reliance on government bailouts is discouraged, except where justified through properly structured PSOs.

For Corporate Governance and Management

The Act introduces clear distinctions between:

• The shareholder (National Treasury),
• The board of directors, and
• executive management.

This clarity strengthens internal accountability and reduces governance failures that historically plagued parastatals.

For the Public and the Exchequer

From a public interest perspective, the Act promises:

• Improved service delivery through better-managed enterprises;
• Greater transparency and public accountability;
• Reduced fiscal burden on taxpayers; and
• Enhanced public value from state assets.

 

Conclusion

The Government Owned Enterprises Act, 2025 represents a paradigm shift in Kenya’s management of state-owned commercial entities. By anchoring public enterprises in company law, professional governance, and performance accountability—while maintaining structured mechanisms for public service delivery—the Act establishes a coherent and modern legal framework for the establishment, control, and oversight of GOEs.

In doing so, it aligns Kenya’s public enterprise sector with constitutional principles of good governance, fiscal responsibility, and economic efficiency, marking a decisive move away from politically driven parastatal administration toward performance-based public ownership.

 

Court’s definitive clarification of what constitutes a “preliminary objection” under civil procedure: The Case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd

Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd

[1969] EA 696
Court: Court of Appeal for East Africa (Sir Charles Newbold P., Law J.A., Duffus V-P.)
Area of Law: Civil Procedure – Preliminary Objections

1. Background of the Case

The dispute between Mukisa Biscuit Manufacturing Co. Ltd and West End Distributors Ltd concerned land use and alleged trespass. However, the substantive dispute is not the reason this case is famous.

Its importance lies in the Court’s definitive clarification of what constitutes a “preliminary objection” under civil procedure—now the leading authority in Kenya, Uganda, Tanzania, and other commonwealth jurisdictions.

2. Facts of the Case

• West End Distributors sued Mukisa Biscuit for trespass, seeking damages and an injunction.
• The defendant, Mukisa Biscuit, raised a preliminary objection claiming that the plaintiff had no cause of action because the defendant’s possession of the land was lawful.
• The plaintiff argued that this was not a pure point of law but a factual issue requiring evidence.

This dispute led the Court to define the nature and limits of preliminary objections.

3. Issues Before the Court

The main issue was:

What is the proper scope and nature of a preliminary objection in civil procedure?

Specifically:

• Should a preliminary objection involve disputed facts?
• Can it be raised when evidence must be examined?
• What matters can be dealt with through preliminary objection?

4. Holding (Decision)

The Court of Appeal held that:

A valid preliminary objection must:

1. Raise a pure point of law,
2. Be based on uncontested, admitted facts, and
3. Be capable of disposing of the whole suit if upheld.

The Court dismissed Mukisa Biscuit’s preliminary objection because it required factual investigation, not a purely legal determination.

5. Rule of Law Established

A preliminary objection is:

“A pure point of law which is argued on the assumption that all facts pleaded by the other side are correct, and which if argued as a preliminary point may dispose of the suit.”
(Sir Charles Newbold P.)

Examples include:

• Jurisdiction
• Res judicata
• Limitation of actions
• Locus standi
• Misjoinder / non-joinder (in some cases)

Notably, it cannot be raised if:

• Factual disputes exist
• Evidence must be examined
• Affidavits must be considered

6. Court’s Reasoning

1. Purpose of Preliminary Objections

The Court observed that preliminary objections serve to save time and costs by allowing courts to dismiss hopeless cases early.

2. Misuse of Preliminary Objections

Sir Charles Newbold criticised how advocates misuse preliminary objections to:

• Delay cases
• Avoid substantive hearing
• Force the court to enter factual inquiries improperly

The Court stressed that such tactics were improper.

3. Need for a Clear Definition

To prevent abuse, the Court established a strict definition:

• Only pure questions of law qualify.
• The court must assume the opponent’s facts are true.
• If evidence is required, the point cannot be a preliminary objection.

4. Consistency across commonwealth jurisdictions

The ruling aligned East African jurisprudence with broader commonwealth procedural standards.

7. Significance of the Case

A. Procedural Landmark

The case is the foundational authority on preliminary objections across:

• Kenya
• Uganda
• Tanzania
• Other East African commonwealth jurisdictions

B. Practical Implications

It guides advocates in:

• Knowing when to raise preliminary objections
• Avoiding misuse of procedural tools
• Structuring pleadings and responses properly

C. Judicial Efficiency

The case protects courts from:

• Unnecessary delays
• Misleading objections
• Wasting judicial resources on factual disputes disguised as legal points

8. Application in Modern Practice

Courts today frequently rely on Mukisa Biscuit to:

• Reject improperly raised preliminary objections
• Clarify what constitutes a point of law
• Dismiss matters at the outset where legal defects exist (e.g., lack of jurisdiction)

9. Key Quotes from the Judgment

On definition:

“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings.”

On procedure:

“It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

10. Conclusion

Mukisa Biscuit v West End remains the leading case defining the nature of preliminary objections. It ensures that objections are raised only on pure points of law, prevents delay tactics, and promotes judicial efficiency.

The case is essential for:

• Civil procedure exams
• Legal practice
• Litigation strategy
• Procedural advisory services

On Conflict between secular law and personal law: The Case of Mohd. Ahmed Khan v. Shah Bano Begum & Others, 1985 SCR (3) 844

Mohd. Ahmed Khan v. Shah Bano Begum & Others, 1985 SCR (3) 844

Supreme Court of India, 1985

1. Background and Significance

The Shah Bano case is one of the most important judgments in Indian family law and constitutional law. It involved a Muslim woman’s claim for maintenance (alimony) from her husband after divorce. The case sparked nationwide debate concerning:

• Muslim Personal Law
• Women’s rights under secular criminal law
• The relationship between the Constitution and religious personal laws
• The idea of a Uniform Civil Code (UCC) under Article 44 of the Indian Constitution

It remains a cornerstone case for discussions on gender justice and legal reforms.

2. Facts of the Case

• Shah Bano, a 62-year-old Muslim woman, was divorced by her husband, Mohd. Ahmed Khan, through talaq (triple divorce) after more than 40 years of marriage.
• Khan stopped providing maintenance, arguing that under Muslim Personal Law, he only had to pay mehr and maintenance during the iddat period (a short period post-divorce).
• Shah Bano filed an application under Section 125 of the Code of Criminal Procedure (CrPC)—a secular provision applicable to all citizens—seeking monthly maintenance.
• Khan argued that because both parties were Muslim, the matter should be governed exclusively under Muslim Personal Law, not secular criminal law.

3. Issues Before the Court

1. Does Section 125 CrPC apply to Muslim women, or are they governed solely by Muslim Personal Law?
2. Can a divorced Muslim woman claim maintenance beyond the iddat period under secular law?
3. What is the relationship between constitutional rights, personal laws, and the State’s obligation to move toward a Uniform Civil Code?

4. Arguments

Husband’s Arguments

• Muslim Personal Law limits responsibility for a divorced woman to iddat and mehr.
• Section 125 CrPC should not override religious law.
• After talaq and payment of mehr, no further obligation existed.

Wife’s Arguments

• Section 125 CrPC is religion-neutral.
• A divorced woman unable to maintain herself is entitled to maintenance, irrespective of religion.
• Personal law cannot deprive her of constitutional protections and statutory remedies.

5. Holding (Decision)

The Supreme Court held that:

1. Section 125 CrPC applies to all citizens, including Muslims.

Religion is irrelevant—the provision is a social justice measure to prevent destitution.

2. A divorced Muslim woman is entitled to maintenance beyond the iddat period if she cannot maintain herself.

The husband's statutory obligation continues until she is able to maintain herself.

3. Muslim Personal Law does not conflict with this conclusion.

The Court held that Muslim law requires fair treatment and does not prohibit post-iddat support in certain forms.

4. Strong observation on the need for a Uniform Civil Code (UCC).

The Court criticized government inaction and noted that India should move toward a UCC to achieve national unity and gender equality.

6. Reasoning

1. Criminal law prevails over personal laws where social welfare is involved

Section 125 CrPC is a criminal procedural law aimed at preventing vagrancy and destitution.
It cannot be eclipsed by religious personal law.

2. Purpose of maintenance laws is protection, not interference with religion

The Court emphasized that maintenance is for survival, not for regulating religious practices.

3. Personal law itself does not bar extended maintenance

The Court interpreted Islamic principles in a progressive light, stating that the Qur’an encourages fair treatment and financial support for divorced women.

4. Constitutional principles demand gender justice

The Court referred to Articles:

• 14 (Equality)
• 15 (Non-discrimination)
• 21 (Right to life and dignity)

These reinforce the rights of women to financial protection after divorce.

7. Legal Principle Established

• Section 125 CrPC is a secular, overriding provision that applies to all Indian citizens, regardless of religion.
• A divorced Muslim woman has the right to claim maintenance beyond the iddat period.
• Personal laws cannot defeat statutory law designed for social justice.

8. Aftermath and Legislative Response

The judgment sparked intense political and religious debate.
In response, the Government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which attempted to limit Shah Bano–style maintenance but was later read expansively by courts to preserve women’s rights (Danial Latifi v. Union of India, 2001).

9. Academic Importance

The case is crucial in the study of:

• Conflict between secular law and personal law
• Gender justice in family law
• Constitutional interpretation (especially Article 44 and UCC)
• Judicial activism in social matters
• Evolution of maintenance rights of divorced women in India

10. Legal Advisory Significance (For Practitioners & Clients)

• Lawyers advising Muslim women can rely on Section 125 CrPC for maintenance claims, irrespective of personal law restrictions.
• Clients should be informed that personal laws cannot override statutory rights relating to subsistence and welfare.
• The case forms strong precedent supporting women’s rights in maintenance disputes.
• Even after the 1986 Act, courts continue to interpret the law to ensure fair protection for divorced Muslim women.

Marbury v. Madison: Establishing the Supreme Court’s Constitutional Oversight

Marbury v. Madison (1803)

1. Overview
Marbury v. Madison is one of the most important cases in United States constitutional history. Decided in 1803, it established the principle of judicial review, which gives courts—especially the Supreme Court—the power to declare laws made by Parliament/Congress unconstitutional. This case is frequently studied around the world because it clearly defines the role of the judiciary in a democratic system.

2. Background of the Case
At the end of his term, President John Adams appointed several officials, including William Marbury, to government positions. Although Marbury’s appointment was approved and signed, the commission (official document) was not delivered before the new president, Thomas Jefferson, took office.

Jefferson instructed his Secretary of State, James Madison, not to deliver the commission.
Marbury then went directly to the Supreme Court seeking an order (a writ of mandamus) compelling Madison to issue the document.

3. Key Questions Before the Court
The Supreme Court considered three main issues:

1. Was Marbury entitled to his commission? – Yes.
2. If his right was violated, was there a remedy? – Yes.
3. Could the Supreme Court lawfully issue that remedy? – No. The Court held it did not have jurisdiction because the law giving it that power was unconstitutional.

4. What the Court Decided (The Holding)
Chief Justice John Marshall ruled that:

• Marbury had a legal right to his commission.
• The government’s refusal to deliver it violated that right.
• However, the section of the Judiciary Act giving the Supreme Court power to issue such orders exceeded the limits placed by the Constitution. Therefore, the Court could not grant Marbury’s request.

5. Why This Case Matters
This case established judicial review—the idea that the courts can:

• Interpret the Constitution, and
• Strike down any law that contradicts the Constitution.

This made the judiciary an independent and equal branch of government, ensuring that no branch (executive, legislative, or judiciary) has unchecked power.

6. Practical Importance for Clients
For clients, the lesson of Marbury v. Madison is that:

• The courts can protect individual rights when government actions overstep legal or constitutional limits.
• There is always a legal mechanism for challenging decisions made without proper authority.
• The Constitution is the ultimate law, and any act that violates it can be challenged and overturned.

Legal Commentary on Compulsory Leave, Procedural Fairness, and Constitutional Compliance in Kenya: The Case of Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others [2025] KEELRC 3037 (KLR)

I. Introduction

The judgment in Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others represents a significant development in Kenyan employment law, particularly regarding the intersection of procedural fairness, fair labour practices, and constitutional protections. The case addresses the legality of placing employees on compulsory leave without prior notice or an opportunity to be heard and demonstrates the judiciary’s commitment to constitutionalising employment rights. This commentary provides a detailed analysis of the facts, legal issues, judicial reasoning, constitutional implications, and policy considerations arising from the decision.

II. Factual Background

The Petitioners were employees of the Kenya Medical Supplies Authority (KMSA) and were placed on compulsory leave without prior notification or an opportunity to be heard. Following this action, the 1st Petitioner resigned, claiming constructive dismissal. The Petitioners alleged that the employer’s conduct constituted unfair labour practice, discrimination, and a breach of their constitutional rights under Articles 27, 41, 47, 50, and 236 of the Constitution.

The case highlights a common practical dilemma in employment management: balancing employer prerogative in workforce administration against employee constitutional and procedural rights.

III. Legal Issues

The case raised several interrelated legal questions:

1. Whether placing employees on compulsory leave without prior notice, explanation, or hearing constitutes a violation of fair labour practices and fair administrative action.
2. Whether the unilateral imposition of leave can amount to constructive dismissal under Kenyan law.
3. The appropriate remedies for employees whose constitutional rights under Articles 27, 41, 47, 50, and 236 are violated in an employment context.

IV. Court’s Holding and Reasoning

The Court held that the forced leave without notice, justification, or an opportunity to be heard constituted unfair labour practice and unlawful administrative action. It emphasized several key principles:

1. Procedural Fairness as a Constitutional Requirement
   The Court anchored its reasoning on Article 47 (fair administrative action) and Article 50 (right to a fair hearing), holding that procedural safeguards apply to employment decisions affecting rights, including compulsory leave. Even in public institutions, managerial discretion must be exercised in compliance with natural justice principles, including prior notice, explanation, and the opportunity to respond.
2. Constructive Dismissal
   The Court found that the 1st Petitioner’s resignation constituted constructive dismissal. Constructive dismissal arises where employer conduct fundamentally undermines the employment relationship, leaving the employee no reasonable alternative but to resign. Here, the unilateral leave disrupted the employment relationship to such an extent that resignation was effectively compelled.
3. Constitutional Violations and Remedies
   The Court recognized violations of Articles 27, 41, 47, 50, and 236, awarding Kshs. 6 million each to the 1st and 3rd Petitioners for constitutional infringements and six months’ salary to the 1st Petitioner for constructive dismissal. This demonstrates the Court’s willingness to link statutory employment protections with constitutional safeguards to ensure comprehensive redress.

V. Doctrinal Analysis

1. Procedural Fairness in Employment Law

Traditionally, procedural fairness in employment focused on disciplinary hearings or dismissals. Njoroge expands this principle to include pre-dismissal managerial actions, such as compulsory leave. This aligns with administrative law doctrines, emphasizing that any action affecting an employee’s substantive rights must follow fair procedures, regardless of whether the action constitutes dismissal.

2. Constructive Dismissal Doctrine

The Court reaffirmed that constructive dismissal does not require a formal termination notice. It arises from employer conduct that fundamentally breaches the employment contract, including unilateral, unjustified, or procedurally defective interventions. This approach strengthens employee protection and aligns Kenyan jurisprudence with common law principles, including those recognized in South African and UK law.

3. Integration with Constitutional Law

The decision is particularly significant for constitutionalising employment protections. Articles 41 and 47 now serve as key instruments for evaluating fair labour practices, procedural fairness, and employer accountability. This integration illustrates the Court’s transformative approach, which ensures that administrative and employment decisions respect both substantive and procedural constitutional rights.

VI. Comparative Perspective

Comparative jurisprudence demonstrates a similar emphasis on procedural safeguards:

• South Africa: The Labour Relations Act requires hearings before suspension or dismissal.
• United Kingdom: Employment tribunals consider whether procedural fairness was observed before upholding unilateral employer actions.

Njoroge aligns Kenya with these jurisdictions, reinforcing the global trend of embedding due process in employment law, particularly for public sector employees.

VII. Policy Implications

1. Employer Practices: Public and private sector employers must develop clear policies regarding compulsory leave, including notice requirements, explanation of reasons, and the opportunity for employees to be heard.
2. Human Resource Management: HR professionals must ensure procedural compliance to avoid claims of unfair labour practice or constructive dismissal.
3. Legislative Reform: The decision suggests a need for statutory guidelines on compulsory leave, particularly in public institutions, to codify procedural safeguards.
4. Judicial Precedent: This case establishes a benchmark for damages in constitutional violations arising from unfair labour practices, guiding both tribunals and HR managers.

VIII. Conclusion

Njoroge & 2 others v Kenya Medical Supplies Authority underscores the judiciary’s commitment to protecting employee rights through constitutional guarantees, extending the scope of procedural fairness beyond traditional dismissal or disciplinary contexts. The case consolidates principles of fair labour practice, procedural justice, and constructive dismissal and signals to employers the need for transparent, justified, and legally compliant management of employment actions, including compulsory leave.

The judgment also provides a doctrinal and policy framework for advising clients on employment practices in Kenya, highlighting the necessity of procedural compliance to mitigate exposure to constitutional claims and compensation liability.

Discaimer:

Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301): Structure, Purpose, and Legal Analysis

1. Paraphrased Summary of the Provision

Subsection (1):

Regardless of any other law or any clause in a lease agreement, a controlled tenancy cannot be ended, altered, or varied unless the process set out under the Act is followed. This section overrides any inconsistent terms in the tenancy agreement.

Subsection (2):

If a landlord wishes to terminate a controlled tenancy or change its terms to the tenant’s disadvantage (for example, increasing rent or removing a service), the landlord must issue a formal notice to the tenant, using the prescribed statutory form.

Subsection (3):

Similarly, if a tenant wants a rent reassessment or changes to the tenancy terms, he or she must serve the landlord with a notice in the prescribed form.

Subsection (4):

A tenancy notice does not take effect until a minimum of two months after the receiving party gets it. However:

• (i) Termination cannot take effect before the earliest date the tenancy could otherwise have ended under the contract.
• (ii) If the lease provides for a longer notice period than two months, that longer period applies.
• (iii) The landlord and tenant can agree in writing to a shorter notice period.

Subsection (5):

For a tenancy notice to be valid, it must:

1. State the grounds or reasons for the proposed termination or change; and
2. Require the recipient to respond in writing within one month, indicating whether they agree or disagree.

Subsection (6):

A notice is properly served if delivered personally to the other party, to a responsible adult at the premises, to a servant residing or employed there, or by registered post to the last known address. Service is deemed effected on the date of personal delivery or the postal receipt date.

2. Analytical Commentary

2.1 Introduction and Legislative Intent

Section 4 of Cap. 301 lies at the heart of Kenya’s regime for the protection of commercial tenants in “controlled tenancies.” Enacted in the early 1960s, the Act sought to correct the historical imbalance between landlords—often wielding superior bargaining power—and small business tenants dependent on leased premises for livelihood.

This section operationalises that protective purpose by regulating how and when a controlled tenancy can be terminated or altered, thereby ensuring predictability, fairness, and due process in landlord–tenant relations. It effectively transforms the landlord’s proprietary rights into rights subject to statutory procedural safeguards.

2.2 The Principle of Statutory Control and Contractual Override

Subsection (1) is peremptory: it nullifies any contractual or statutory provision inconsistent with the Act’s requirements. In effect, parties cannot “contract out” of Cap. 301 protections. The provision thus embodies a public-law limitation on freedom of contract, justified by the legislature’s intention to protect tenants who occupy commercial premises as a source of income or business continuity.

Kenyan courts have consistently upheld this principle. In Karanja v Savings & Loan (K) Ltd [1986] KLR 78, the High Court noted that once a tenancy falls within the definition of “controlled tenancy,” the landlord’s rights are curtailed by statute, and termination must strictly comply with Section 4.

2.3 The Prescribed Notice: Procedure and Purpose

Subsections (2) and (3) establish reciprocal rights and obligations of notice for both landlords and tenants. The requirement that the notice be in the prescribed form (Form A or B in the Schedule to the Act) ensures uniformity and legal certainty.

This procedural formalism is not mere technicality—it guarantees transparency, allowing the tenant to understand precisely why termination or alteration is sought, and to invoke statutory dispute mechanisms under Section 6, which permits referral to the Business Premises Rent Tribunal (BPRT).

Failure to issue the prescribed notice renders any attempted termination null and void ab initio, as held in Caledonia Supermarket Ltd v Kenya National Examinations Council [2017] eKLR, where the landlord’s informal notice was declared invalid.

2.4 Time Frames and Protection against Abrupt Termination

Subsection (4) prescribes a minimum two-month notice period before any notice takes effect. The policy rationale is to protect tenants from sudden eviction or disruption to their business operations. The provisos balance flexibility and fairness:

• Clause (i) ensures that landlords cannot use the Act to shorten the original contractual term.
• Clause (ii) respects longer notice periods already agreed by the parties, reinforcing the principle that the Act provides minimum protections, not ceilings.
• Clause (iii) allows for consensual waiver, reflecting a limited retention of party autonomy within the statutory framework.

In Shah v Aggarwal [1983] KLR 100, the court underscored that failure to observe the statutory notice period invalidates termination and that any premature action amounts to unlawful eviction.

2.5 Substantive Content of the Notice: Grounds and Right to Respond

Subsection (5) introduces two vital substantive requirements:

1. The notice must state specific grounds (for instance, rent increase, breach, redevelopment, or personal occupation); and
2. It must invite a written response within one month.

This provision embeds a quasi-procedural fairness principle within the tenancy framework, mirroring administrative law values of notice, hearing, and reasoned decision-making. It ensures that neither party can act arbitrarily and provides a record for BPRT adjudication if a dispute arises.

Courts have treated the omission of reasons as fatal to the validity of the notice. In Patel v Rent Restriction Tribunal [1972] EA 446, it was held that the landlord’s notice lacking reasons for termination could not be enforced.

2.6 Service and Proof of Delivery

Subsection (6) prescribes modes of service—personal delivery, delivery to an adult member of the household, to a servant, to the employer, or by registered post. The detailed service provisions reflect the legislature’s intent to avoid disputes over whether notice was received.

The deeming clause, which makes service effective on delivery or postal receipt, simplifies proof while protecting both parties’ procedural rights. Nonetheless, Kenyan courts have required strict proof of service, especially where the landlord relies on termination to commence eviction proceedings (Gachanja v Commercial Bank of Africa [2019] eKLR).

2.7 Interaction with the Business Premises Rent Tribunal

Section 4 operates in tandem with Section 6 of the Act, which allows a party receiving a notice to refer the matter to the BPRT within one month. The Tribunal’s supervisory role ensures judicial oversight of any intended termination or variation, embodying the legislature’s vision of a controlled rather than a laissez-faire tenancy environment.

3. Doctrinal and Constitutional Significance

3.1 Balancing Property Rights and Socio-Economic Rights

The Act, through Section 4, mediates the tension between Article 40 of the Constitution (protection of property rights) and Article 43(1)(c) (right to economic and social security, including work and livelihood). It constrains landlords’ proprietary autonomy to secure the tenant’s livelihood interest in continuity of business premises—a recognition that tenancy relationships have social as well as economic dimensions.

3.2 The Public–Private Divide and Regulatory Justice

Section 4 exemplifies how private law relationships can be constitutionalised through legislative intervention. By mandating procedural fairness and reason-giving, the statute introduces principles characteristic of administrative justice into the private sphere. It reflects Kenya’s broader movement towards transformative constitutionalism, where fairness and due process extend beyond public administration to private economic relations.

4. Comparative and Policy Perspectives

Kenya’s Cap. 301 aligns with global trends in landlord–tenant regulation, akin to the UK Landlord and Tenant Act 1954, which similarly restricts termination of business tenancies without statutory notice and grounds. The underlying policy rationale—to protect the continuity of businesses and prevent economic displacement—remains consistent.

However, the Kenyan framework is unique in providing an adjudicative tribunal (the BPRT) with quasi-judicial powers. This institutional design ensures speedy, accessible, and specialised dispute resolution, reflecting a commitment to social justice within commercial regulation.

5. Conclusion

Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act stands as the procedural cornerstone of Kenya’s commercial tenancy regime. It embodies a deliberate legislative effort to subordinate contractual formalism to fairness, predictability, and accountability.

By mandating prescribed notice, sufficient lead time, stated grounds, and proof of service, the section ensures that neither party—especially the economically weaker tenant—is subjected to arbitrary eviction or unilateral alteration of terms.

In the modern context, as Kenya urbanises and small enterprises depend increasingly on leased premises, Section 4 continues to serve as a statutory expression of fair dealing and constitutional justice in private economic relations.

References

1. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya.
2. Karanja v Savings & Loan (K) Ltd [1986] KLR 78.
3. Caledonia Supermarket Ltd v Kenya National Examinations Council [2017] eKLR.
4. Shah v Aggarwal [1983] KLR 100.
5. Patel v Rent Restriction Tribunal [1972] EA 446.
6. Gachanja v Commercial Bank of Africa [2019] eKLR.