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ELCPartially AllowedNot stated in judgment (application dated 15.1.2018 and application dated 12.3.2018)· [2018] KEELC 1892 (KLR)

Siokwei Tarita Limited v Commission of University Education & another [2018] KEELC 1892 (KLR)

Environment and Land Court
10 August 2018
AOA. Ombwayo
1,103 words in judgment
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The bottom line

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Kenya's Environment and Land Court extended a stay of proceedings indefinitely because appeal delays weren't the applicants' fault, but ordered the premises repaired.

What this practically means

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Executive summary

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Two review applications were consolidated before the Environment and Land Court at Eldoret. The applicants, Professor John S. Akama and Dr. Kipyegon Kirui, applied by notice dated 15.1.2018 for review of the order of 22.11.2017 which had limited stay of proceedings to 60 days, seeking a stay of proceedings pending the hearing and determination of an intended appeal to the Court of Appeal, on the grounds that the appeal had been filed but was yet to be heard, and that the petitioner might enforce earlier orders. The petitioner on 12.3.2018 filed his own application seeking review, setting aside or variation of the same ruling, with any extension being conditional on Kisii University paying rent arrears of Kshs. 45,671,470.85 over tenancy at Tarita Centre, L.R. No. Eldoret Municipality Block 7/162, and restoring the premises to pre-tenancy condition, invoking Article 40 property rights and section 66 of the Land Act. The court agreed with the applicants that the fixing of the hearing date of the appeal is the preserve of the Court of Appeal and the typing of proceedings the preserve of the Environment and Land Court, and so reviewed the order of 22.11.2017, ordering a stay of proceedings pending hearing and determination of the intended appeal. However, in the interest of justice, the respondents were ordered to repair Tarita Centre to its pre-tenancy condition, with the rent question left for determination in the petition. Each party was ordered to bear its own costs of the two applications. Judgment delivered at Eldoret on 10th August 2018 by A. Ombwayo, Judge.

Key legal issues

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01

Whether to review the 60-day stay order of 22.11.2017

Holding

The stay was reviewed and extended as a stay of proceedings pending hearing and determination of the intended appeal

Reasoning

The court found that the applicants could not control the fixing of the appeal hearing date before the Court of Appeal, nor the typing of proceedings, which is the preserve of the Environment and Land Court. Delay therefore could not be attributed to the applicants, and justice favoured an open-ended stay pending the appeal.

p. 2
02

Whether the petitioner's demand for payment of rent arrears and restoration of premises should be granted in the review applications

Holding

Repair of the premises to pre-tenancy condition was ordered; the rent question was left to the petition

Reasoning

In the interest of justice the court ordered the respondents to repair Tarita Centre to its pre-tenancy condition, but declined to determine the rent arrears claim in the review applications, holding that the issue as to rent payable would be determined in the petition.

p. 2

Legal principles established

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  • The fixing of the hearing date of an appeal and the typing of proceedings are not within the applicant's control, justifying review of a time-limited stay order

Court orders

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  1. 1.Review of the orders made on 22.11.2017
  2. 2.Stay of proceedings pending hearing and determination of the intended appeal
  3. 3.The respondents to repair the premises, Tarita Centre, to the pre-tenancy condition
  4. 4.The issue as to rent payable to be determined in the petition
  5. 5.Each party to bear own costs for the two applications

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40 read with Article 260
  • Constitution of Kenya, 2010Articles 19(1) & (2) and 24(1)(d)
  • Land Act, No. 6 of 2012Section 66(1)(a) and section 66
On appeal from
Court of Appeal (intended appeal)
Jurisdiction invoked
Review jurisdiction over own orders (order of 22.11.2017); constitutional provisions Articles 19, 24, 40 and 260 cited

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, "Siokwei Tarita Limited v Commission of University Education & another [2018] KEELC 1892 (KLR)", Case Analysis (2018). Not stated in judgment (application dated 15.1.2018 and application dated 12.3.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1892/eng@2018-08-10

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