Shade Manufacturers and Hotel Limited v Serah Mweru Mutuu & 3 others [2018] KECA 205 (KLR)
The bottom line
#The Court of Appeal confirmed that Kenyan landlords and tenants cannot appeal ELC decisions on rent tribunal matters, and dismissals cannot be stayed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction - absence of a right of appeal to the Court of Appeal
The Court has no jurisdiction because Section 15(4) of the Landlord and Tenant Act renders the decision of the Environment and Land Court on appeal from the BPRT final and not subject to further appeal.
The Court examined the proviso to Section 15(4), which states that the decision of the Environment and Land Court on any appeal under the Act is final and not subject to further appeal. Relying on its earlier decision in Ramadhan Mohamed Ali v Hashim Salim Ghanim, which itself endorsed Premchand Nathu v Kariuki, the Court held that there is no second appeal to this Court from the Tribunal decision as processed through the ELC. Without a right of appeal, there can be no arguable appeal, so the twin test under rule 5(2)(b) fails at the first limb.
Stay of a negative order
A ruling that merely dismisses an application for stay, without ordering anyone to do or refrain from doing anything, is a negative order incapable of execution and incapable of being stayed.
The Court applied the jurisprudence in Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah, Western College of Arts and Applied Sciences v Oranga and Raymond M. Omboga v Austine Pyan Maranga, all of which hold that a negative order incapable of execution cannot be stayed. Since the ELC ruling merely declined stay and did not order any party to do anything or pay any sum (save costs), the application to stay it was misconceived and could not satisfy the nugatory- limb of the rule 5(2)(b) test.
Legal principles established
#- Under the proviso to Section 15(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, there is no right of second appeal to the Court of Appeal from a decision of the Environment and Land Court on appeal from the Business Premises Rent Tribunal; and there can be no arguable appeal where there is no right of appeal.
- A negative order - one that merely dismisses an application and does not order any party to do or refrain from doing anything or to pay any sum - is incapable of execution and therefore incapable of being stayed.
Court orders
#- 1.The Notice of Motion dated 16th July 2018 be and is hereby dismissed with costs
- On appeal from
- Environment and Land Court, Milimani, Nairobi (K. Bor, J.)
- ELC Appeal No. 41 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution/injunction pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ouma v Dave (Environment and Land Appeal E106 of 2025) [2026] KEELC 5371 (KLR)[2026] KEELC 5371 (KLR)31 Aug 2026applied
Cite this brief
#Cite this brief
Caselaw, "Shade Manufacturers and Hotel Limited v Serah Mweru Mutuu & 3 others [2018] KECA 205 (KLR)", Case Analysis (2018). Civil Application NAI 207 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/205/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.