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ELCStruck OutBPRT Appeal (not specified in judgment; appeal from BPRT Cause No. 38 of 2021)· [2022] KEELC 452 (KLR)

Mike Muli v Justus Mwandikwa Kilonzo & 4 others [2022] KEELC 452 (KLR)

Environment and Land Court
20 April 2022
OMOguttu Mboya
6,841 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled you cannot appeal a Business Premises Rent Tribunal complaint decision unless you first get leave to appeal.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 14 January 2022 by the Appellant, Mike Muli, seeking stay of execution of a ruling of the Business Premises Rent Tribunal at Nairobi (Hon Gakuhi Chege) delivered on 24 December 2021 in BPRT Cause No. 38 of 2021, which had dismissed his Complaint and, effectively, his tenancy over premises known as Regina & Sons in Mwingi Town. The Respondents opposed, contending that the application had been overtaken by events as the Appellant had already been evicted on 14 January 2022 and a new tenant placed in possession, and that the Appellant came to court with unclean hands having been in rent arrears of over Kshs. 271,000. At the hearing the court directed the parties to address a threshold jurisdictional question: whether an appeal lay to the Environment and Land Court from a determination arising from a Complaint filed under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, rather than from a Reference under Section 6. Counsel for the Appellant conceded that no leave to appeal had been sought or obtained. The court held that Section 15(1) of the Act confers a right of appeal only to parties to a Reference aggrieved by a determination or order made therein, and endorsed Re-Heptulla Properties Ltd and Gatanga General Store v Githere, expressly disagreeing with the contrary decision in Trans Allied Ltd v Sakai Trading Ltd. The court also held that a right of appeal must be expressly conferred by statute and cannot be inferred, and that absent leave the appeal was incompetent. Accordingly, the appeal was struck out with half costs awarded to the Respondents.

Key legal issues

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01

Jurisdiction to entertain an appeal from a Tribunal determination arising from a Complaint under Section 12(4)

Holding

The court lacks jurisdiction; Section 15 restricts appeals to determinations arising from a Reference

Reasoning

Section 15(1) allows only parties to a Reference aggrieved by a determination or order made therein to appeal. A Reference is statutorily defined under Section 2 as one under Section 6, following statutory notices under Section 4. The court endorsed Re-Heptulla Properties and Gatanga General Store, disagreeing with Trans Allied v Sakai Trading, holding that a complaint under Section 12(4) is not a Reference and orders on complaints are unappealable as of right.

p. 7
02

Competency of the appeal absent leave

Holding

The appeal is incompetent since no leave to appeal was sought or obtained

Reasoning

Counsel for the appellant admitted that no leave to appeal was applied for or obtained at the delivery of the ruling or at all. Since no right of appeal arises from a Complaint, a party wishing to appeal must first seek leave of the tribunal or of the court, as under Section 75 of the Civil Procedure Act. Absent leave, the appeal is incompetent.

p. 8

Legal principles established

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  • Section 15(1) of the Landlord and Tenant Act confers a right of appeal to the Environment and Land Court only on parties to a Reference, not on parties to a Complaint under Section 12(4)
  • A right of appeal must be expressly conferred by statute and cannot be inferred

Court orders

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  1. 1.The Appeal be and is hereby struck out for want of jurisdiction
  2. 2.The Respondents be and are hereby awarded half costs of the proceedings

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSections 2, 4, 6, 9, 10, 12(4), 15(1), 15(2), 15(3), 15(4)
  • Civil Procedure ActSection 75(1)
  • Arbitration Act 1995Section 39(3)(b) (as referenced in Micro-House Technologies)
  • Law of Succession ActNot specified (cited as example of restricted appeals)
  • Election Act 2011Not specified (cited as example of restricted appeals)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Tribunal Forms and Procedure RegulationsRegulation 5, Form C

Cases cited (15)

  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • Re-Heptulla Proberties Ltd
    (1979) eKLR
  • Gatanga General Store & 2 Others v Githere
    (1988) eKLR
  • Choitram v Mystery Model Hair Saloon
    [1972] EA 525
  • Machenje v Kibarabara
    [1973] EA 481
  • Pritam v Ratilal & Another
    (1972) EA 560
  • SILAS YIMBO T/A WOODVALE ASSOCIATES v ELDOMART HOLDINGS LIMITED
    [2008] eKLR
  • Kakutia Maimai Hamisi v Peris Pesi Tobiko & Others
    (2013) eKLR
  • Trans Allied Limited v Sakai Trading Limited
    (2016) eKLR
  • Adiel Nthuni Maimbu v Mugo J Kirika
    (2020) eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Micro-House Technologies Limited v Co-operative College of Kenya
    [2017] eKLR
  • Nyutu Agrovet Limited v Airtel Networks Ltd
    (supra)
  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application Number 2 of 2011
On appeal from
Business Premises Rent Tribunal at Nairobi
BPRT Cause No. 38 of 2021
Jurisdiction invoked
Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301, Laws of Kenya (appeal to the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mike Muli v Justus Mwandikwa Kilonzo & 4 others [2022] KEELC 452 (KLR)", Case Analysis (2022). BPRT Appeal (not specified in judgment; appeal from BPRT Cause No. 38 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/452/eng@2022-04-20

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