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ELCDismissedNotice of Motion dated 31st January, 2019 (arising from Environment and Land Court judgment delivered 5th December, 2018; originating from Mombasa Tribunal Cases Nos. 99, 100, 102 and 107 of 2012)· [2020] KEELC 1750 (KLR)

Joseph Mwalukuku v Kenya Ports Authority [2020] KEELC 1750 (KLR)

Environment and Land Court
11 March 2020
CYC.K. Yano
1,264 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed you cannot appeal its Tribunal-related decisions to the Court of Appeal, ending that case for good.

What this practically means

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Executive summary

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By a Notice of Motion dated 31st January 2019, the applicant sought two orders from the Environment and Land Court at Mombasa: stay of execution of the judgment of Waithaka, J delivered on 5th December 2018, and leave to file an appeal out of time to the Court of Appeal against that judgment. The application was premised on Rule 4 of the Court of Appeal Rules and Section 7 of the Appellate Jurisdiction Act, supported by the applicant's affidavit deposing that judgment was delivered in his absence and that of his advocates, and that the intended appeal was meritorious. The respondent opposed through grounds of opposition dated 27th March 2019, contending inter alia that under Section 15(4) of Cap 301 the judgment was final and not subject to further appeal, and that under Section 75(2) of the Civil Procedure Act no second appeal lies from an order passed in appeal at the ELC, so the court lacked jurisdiction. The court framed a single issue: whether it had jurisdiction to grant the leave sought. Relying on the proviso to Section 15(4) of Cap 301 and the Court of Appeal decisions in Ramadhan Mohamed Ali v Hashim Salim Ghanim and Premchand Nathu & Co Ltd v Kariuki, C.K. Yano J held that the ELC's decision on an appeal from the Business Premises Rent Tribunal is final; there is no right of second appeal to the Court of Appeal. Further, Rule 4 and Section 7 confer jurisdiction on the Court of Appeal, not the ELC. The motion was dismissed with costs to the respondent on 11th March 2020.

Key legal issues

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Whether the Environment and Land Court has jurisdiction to grant leave to appeal out of time to the Court of Appeal

Holding

The court has no such jurisdiction; the proviso to Section 15(4) of Cap 301 makes its decision on appeals from the Tribunal final and not subject to further appeal.

Reasoning

The judgment arose from a Tribunal decision appealed to the ELC under Section 15 of Cap 301. The proviso to Section 15(4) renders the ELC decision final. The Court of Appeal in Ramadhan Mohamed Ali v Hashim Salim Ghanim and Premchand Nathu & Co Ltd v Kariuki confirmed there is no second appeal to the Court of Appeal from the ELC's original appellate decision on a Tribunal matter. Further, Rule 4 of the Court of Appeal Rules and Section 7 of the Appellate Jurisdiction Act confer jurisdiction on the Court of Appeal, not the ELC. To entertain the application would be to confer jurisdiction on itself contrary to statute.

p. 2

Legal principles established

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  • There is no right of second appeal to the Court of Appeal from a decision of the Environment and Land Court on a matter that originated from a decision of the Business Premises Rent Tribunal, by virtue of the proviso to Section 15(4) of Cap 301
  • The jurisdiction of the Environment and Land Court is statutory and cannot be self-conferred in the face of statutory provisions ousting further appeal

Court orders

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  1. 1.The Notice of Motion dated 31st January 2019 is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Appellate Jurisdiction ActSection 7
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301Section 15(1), (2) and (4)
  • Civil Procedure Act, Chapter 21Section 75(2)

Cases cited (2)

  • Ramadhan Mohamed Ali –v- Hashim Salim Ghanim
    (2016) eKLR
  • Premchand Nathu & Co. Ltd & 4 Others –v- Kariuki
    (1990) eKLR; C.A. No.33 of 1990
Jurisdiction invoked
Section 15(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301; Rule 4 of the Court of Appeal Rules; Section 7 of the Appellate Jurisdiction Act

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, "Joseph Mwalukuku v Kenya Ports Authority [2020] KEELC 1750 (KLR)", Case Analysis (2020). Notice of Motion dated 31st January, 2019 (arising from Environment and Land Court judgment delivered 5th December, 2018; originating from Mombasa Tribunal Cases Nos. 99, 100, 102 and 107 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1750/eng@2020-03-11

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