Red and Yellow Outdoors Limited v Shiloah Investments Limited
The bottom line
#Kenya's Court of Appeal confirmed it cannot hear appeals from Environment and Land Court decisions in protected tenancy disputes, so parties must build their strongest case at the ELC stage.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal can hear an appeal or application arising from an ELC decision on appeal from the BPRT
It cannot; section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act makes the ELC's decision final and denies a further appeal to this Court, rendering the application incompetent
Section 15(4) of the Act provides that the decision of the ELC on any appeal under the Act shall be final and not subject to further appeal. Article 164(3) of the Constitution does not grant a universal right of appeal; a right of appeal is a creation of law, expressly conferred by the Constitution or a statute. Section 15 is a finality clause, distinguishable from an ouster clause, and it validly restricts second appeals in the interests of finality of disputes. The application was therefore incompetent and had to be struck out.
Whether the jurisdictional objection was a procedural technicality saved by Article 159
No; jurisdiction goes to the heart of the matter and cannot be treated as a procedural technicality
Relying on the Supreme Court's decision in Samuel Macharia & another v Kenya Commercial Bank Limited & 2 others, the Court held that a court can only exercise jurisdiction as conferred by the Constitution or written law and cannot arrogate to itself jurisdiction exceeding that conferred by law. The question whether a court has jurisdiction is not a mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction a court cannot entertain any proceedings.
Legal principles established
#- Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is a finality clause: an appeal from the ELC, sitting on appeal from the BPRT, does not lie to the Court of Appeal, and this Court has no jurisdiction over such appeals
- Article 164(3) of the Constitution does not confer an unfettered right of appeal on litigants; a right of appeal is created by the Constitution or statute, and Parliament may by statute prescribe or limit the Court of Appeal's jurisdiction
- A jurisdictional challenge is a substantive question, not a procedural technicality that can be cured under Article 159 of the Constitution
Court orders
#- 1.The Notice of Motion application dated 17th February 2025 is struck out
- 2.No order as to costs, each party to bear their own costs
- On appeal from
- Environment and Land Court at Kisumu
- ELCLA/E108/2024
- Jurisdiction invoked
- Article 164(3) of the Constitution read with section 3(1) of the Appellate Jurisdiction Act; the court held that section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act denies any appeal to it from the ELC sitting as an appellate court from the BPRT
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Red and Yellow Outdoors Limited v Shiloah Investments Limited", Case Analysis (2025). Notice of Motion dated 17th February 2025, arising from ELCLA/E108/2024 (ELC Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1874/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.