David Thiong’o T/A Welcome General Stores v Market Fancy Emporium [2010] KECA 189 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that High Court decisions on controlled tenancy disputes are final, blocking landlords' and tenants' further appeals.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant's intended appeal against the refusal of stay by Visram, J is arguable
- 2.Whether, if the intended appeal ultimately succeeded, its success would be rendered nugatory by refusal of the injunction
- 3.Whether the Court of Appeal has jurisdiction to entertain an appeal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act given the finality proviso to section 15(4)
Key legal issues
#Arguability of the intended appeal where the High Court refused stay, not injunction
The intended appeal was not arguable because the High Court was never asked for an injunction; granting the injunction now sought would directly prevent implementation of the Magistrate's order rather than the Judge's order.
The court distinguished between what was refused below (a stay) and what was now sought (an injunction). If the superior court had been asked for and refused an injunction, the Court of Appeal could consider granting one on its own merits. Since the injunction sought operates against the Magistrate's summary judgment order rather than Visram J's order, the applicant failed the arguability threshold from that standpoint.
Jurisdiction of the Court of Appeal over appeals under the Landlord and Tenant Act
The proviso to section 15(4) of the Act makes the High Court's decision on any appeal under the Act final, so the Court of Appeal has no jurisdiction; the judge's grant of leave could not override the statute.
The tenancy appeared to be a controlled tenancy under the Act, so the matter fell to be determined under its provisions. The proviso to section 15(4) expressly excludes further appeal. The court held it doubtful that leave granted by a High Court judge could displace the specific provisions of an Act of Parliament, reinforcing the conclusion that no arguable appeal lay.
Legal principles established
#- An applicant under Rule 5(2)(b) must first satisfy the court that the appeal is arguable (not frivolous), and secondly that the appeal's success would be rendered nugatory if the injunction is refused; the nugatory consideration arises only once arguability is established.
- The decision of the High Court on an appeal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is final and is not subject to further appeal to the Court of Appeal.
- Leave granted by a judge of the High Court cannot override an express statutory bar on further appeals contained in an Act of Parliament.
Court orders
#- 1.The applicant's notice of motion dated 4th April 2007 and lodged on 5th April 2007 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- H.C.C. Appeal No. 914 of 2005
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction pending filing of an intended appeal)
Relief refused
#Injunction restraining the respondent from evicting the applicant from the business premises pending the intended appeal
The intended appeal was not arguable; granting the injunction would in effect prevent implementation of the Magistrate's order rather than that of Visram, J, and the Court would in any event lack jurisdiction over an appeal under the Act
Costs
The applicant's notice of motion dated 4th April 2007 is dismissed with the costs thereof to the respondent.
Quotable passages
#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 applicant was bound to satisfy the Court, first, that he has an arguable appeal, i.e. an appeal which is not frivolous, and secondly, that if the Court were to refuse to grant to him the injunction he seeks and his proposed appeal were to succeed in the end, that success would have been rendered nugatory by the refusal to grant the injunction.
That being the view we take of the matter, we order that the applicant's notice of motion dated 4th April, and lodged in the Court on 5th April, 2007 be and is hereby dismissed with the costs thereof to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Thiong’o T/A Welcome General Stores v Market Fancy Emporium [2010] KECA 189 (KLR)", Case Analysis (2010). Civil Application No. 74 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/189/eng@2010-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.