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Court of AppealStruck OutCivil Application No. NAI. 241 of 2015 (UR 200/2015)· [2016] KECA 367 (KLR)

Gibson M. Munyiri & 2 others v Peter Munuve Mwangangi & another [2016] KECA 367 (KLR)

Court of Appeal
22 July 2016
KKKihara KariukiPhilomena Mbete MwiluP. M. MwiluSKS. ole Kantai
1,244 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot hear appeals from Business Premises Rent Tribunal cases because the law makes the High Court's decision final.

What this practically means

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Executive summary

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The applicants sought, by notice of motion dated 17th September 2015, an injunction and stay of execution of an eviction order made by the High Court (Sergon, J.) on 2nd September 2015 in H.C.C.A. No. 657 of 2011, pending an intended appeal. The dispute originated in a tenancy of premises on L.R. No 209/8313, Industrial Area, Nairobi; the 3rd applicant's reference to the Business Premises Rent Tribunal was dismissed, his appeal to the High Court was also dismissed, and an eviction order followed. The respondents raised a preliminary objection on four grounds, principally that under section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act the decision of the court hearing the appeal from the Tribunal is final, ousting the Court of Appeal's jurisdiction; that the 1st and 2nd applicants lacked locus standi as non-parties below; that the application was an abuse of process; and that it had been overtaken by events since the 3rd applicant was evicted on 6th April 2016. Applying the Mukisa Biscuits definition of a preliminary objection and the Owners of Motor Vessel 'Lilian S' dictum on jurisdiction, the Court agreed that section 15(4) renders the High Court's decision final and precludes further appeal. It upheld the preliminary objection, struck out both the application and the notice of appeal, and awarded costs to the respondents. The applicants' submissions on standing and preservation of the subject matter were therefore never reached on the merits.

Key legal issues

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01

Jurisdiction of the Court of Appeal over Tribunal-related appeals

Holding

The Court has no jurisdiction because section 15(4) of the Act renders the decision of the court hearing the appeal from the Tribunal final.

Reasoning

Section 15 permits an appeal from the Tribunal to the Environment and Land Court but provides that that court's decision is final and not subject to further appeal. Jurisdiction being foundational, the Court, citing Owners of Motor Vessel 'Lilian S', must down its tools once it finds it lacks jurisdiction; consequently both the application and the notice of appeal are incompetent.

p. 3
02

Definition of a preliminary objection

Holding

Adopted the Mukisa Biscuits definition: a point of law pleaded or arising clearly from the pleadings which may dispose of the suit.

Reasoning

The Court invoked the locus classicus definition by Law, J.A. in Mukisa Biscuits, confirming that an objection to jurisdiction is a proper preliminary objection capable of disposing of the application without hearing the merits.

p. 2

Legal principles established

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  • The decision of the High Court (Environment and Land Court) on an appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is final and not subject to further appeal to the Court of Appeal.
  • A court without jurisdiction must take no further step in the matter.

Court orders

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  1. 1.The respondents' preliminary objection is upheld
  2. 2.The application dated 17th September 2015 is struck out with costs to the respondents
  3. 3.The notice of appeal against the ruling of Sergon, J. is struck out
  4. 4.Costs of the preliminary objection to the respondents

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 15(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Actsection 15(4)

Cases cited (2)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors
    [1969] EA 696
  • Owners of Motor Vessel 'Lilian S'
    [1989] 1 at 14
On appeal from
High Court of Kenya at Nairobi
H.C.C.A. No. 657 of 2011
Jurisdiction invoked
Rule 5(2)(b) jurisdiction invoked for stay/injunction pending appeal; court held section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act ousts its jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gibson M. Munyiri & 2 others v Peter Munuve Mwangangi & another [2016] KECA 367 (KLR)", Case Analysis (2016). Civil Application No. NAI. 241 of 2015 (UR 200/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/367/eng@2016-07-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.