Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedBPRT Appeal (not fully stated in judgment; appeal from BPRT No. 720 of 2015)· [2020] KEELC 3546 (KLR)

National Oil Corporation of Kenya v Real Energy Limited [2020] KEELC 3546 (KLR)

Environment and Land Court
20 February 2020
EOE. O. Obaga
1,574 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
National Oil Corporation of Kenya (Applicant/Appellant), registered owner of LR No. 209/7753 on Ngong Road, Nairobi, had entered a two-year Dealer Licence Agreement with Real Energy Limited (Respondent) in April 2014. The Respondent obtained an injunction against the Applicant at the Business Premises Rent Tribunal in BPRT No. 720 of 2015; the Applicant's judicial review attempt to quash it failed before Odunga J in October 2015, and its preliminary objection on jurisdiction was dismissed in April 2016. The Applicant appealed to this court and obtained a stay of proceedings in June 2017. On 9th October 2019, on the eve of the appeal's mention for confirmation of compliance, the Applicant filed a Notice of Motion seeking variation of the Tribunal's injunction of 19th October 2015 to restore it to possession of the Petrol Station, mandatory possession orders for preservation, structural safety and security purposes, and police assistance. It alleged the Respondent's directors faced criminal charges, a forged lease had been prepared, the Respondent had abandoned the dilapidated station, and its assets faced vandalism. The Respondent opposed, noting continued rent payments, ongoing operations at the site, and compensability of any loss. Justice Obaga framed two issues: whether the court could vary the Tribunal's injunction, and whether mandatory possession orders could issue. Holding that the appeal was ready for judgment, the court found the application was brought solely to delay and circumvent the appeal, amounting to an abuse of process. Mandatory orders were refused as they could only issue in the clearest of cases and would pre-empt the appeal's determination. The application was dismissed with costs to the Respondent on 20th February 2020.

Key legal issues

#
01

Whether the court could vary injunction orders granted by the Tribunal in 2015 pending the appeal

Holding

The court declined to vary the injunction; no grounds were shown and the application was intended to delay the appeal

Reasoning

The court noted that directions on submissions had been given and the appeal was ready for judgment. It found that attempts to quash the injunction by judicial review had failed, that no new grounds justified variation, and that the application circumvented the pending appeal and rendered it academic. The injunction therefore remained in force pending determination of the appeal.

p. 2
02

Whether mandatory orders granting possession of the Petrol Station to the Applicant should issue pending appeal

Holding

Mandatory orders refused because the pending appeal on the Tribunal's jurisdiction would be pre-empted

Reasoning

The court applied the principle that mandatory interlocutory orders are granted only in the clearest of cases. Since the appeal had yet to determine whether the Tribunal was seized with jurisdiction, granting possession would amount to deciding the appeal before judgment. The preservation and safety concerns raised could not displace that principle at that stage of proceedings.

p. 3

Legal principles established

#
  • Mandatory interlocutory orders can only be granted in the clearest of cases
  • Interlocutory applications brought at a late stage of an appeal to circumvent the appeal are an abuse of the process of the court

Court orders

#
  1. 1.dismissal of the Applicant's Notice of Motion dated 9th October 2019
  2. 2.costs of the application to the Respondent
On appeal from
Business Premises Rent Tribunal
BPRT No. 720 of 2015
Jurisdiction invoked
Appellate jurisdiction over the Business Premises Rent Tribunal under the Business Premises Rent Act (Cap 301) - not expressly cited in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "National Oil Corporation of Kenya v Real Energy Limited [2020] KEELC 3546 (KLR)", Case Analysis (2020). BPRT Appeal (not fully stated in judgment; appeal from BPRT No. 720 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3546/eng@2020-02-20

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