Samson Oloolmaitai & 2 others v LEO Investment Limited [2022] KEELC 1907 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that rent tribunal injunctions stay valid for twelve months, so the landlord's appeal failed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the BPRT
The BPRT had jurisdiction since the dispute involves a landlord-tenant relationship under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, an issue already conclusively determined by the ELC in Leo Investment Limited v Samson Ololmaitai; res judicata and estoppel apply
The court traced the chronology: the same court had earlier struck out the Respondent's suit in the High Court on the ground that the dispute fell within the BPRT's jurisdiction under section 6 of the Act. The jurisdiction issue was therefore not novel and had had its day in court. The court declined to depart from its own prior finding and held the Tribunal properly seized of the matter.
Lapse of the ex parte injunction orders
The orders of 26th March 2020, confirmed on 4th June 2020 by grant of prayers (d), (e) and (f) pending the reference, had not lapsed because twelve months under Order 40 Rule 6 had not expired; the Appellants' application was premature
Order 40 Rule 6 provides that an interlocutory injunction lapses after twelve months unless the court orders otherwise. The Tribunal found the effective expiry date was 5th June 2021 and noted the Covid-19 cessation of movement explained delays in service. The court agreed that the twelve-month period had not run by the time the Appellants moved the Tribunal.
Exercise of the Tribunal's discretion to dismiss the application to set aside the injunction
The BPRT correctly exercised its discretion in dismissing the Appellants' Notice of Motion dated 30th March 2021; the Appellants adduced no evidence of a wrong exercise of discretion
Discharge or variation of an injunction is discretionary and must be exercised judiciously. After reviewing the evidence and submissions, the court found no demonstration of capricious or wrongful exercise of discretion by the Tribunal and saw no reason to disturb the findings.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence afresh and draw its own conclusions, while allowing for the trial court's advantage of seeing and hearing witnesses
- Jurisdiction is fundamental; a court or tribunal without jurisdiction cannot take any further step
- Under Order 40 Rule 6, an interlocutory injunction lapses after twelve months if the suit is not determined, unless the court orders otherwise for sufficient reason
- The power to set aside, vary or discharge injunctive orders is discretionary and must be exercised judiciously, not capriciously
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The Respondent is awarded costs of the appeal
- On appeal from
- Business Premises Rent Tribunal (Nakuru)
- Nakuru BPRT Case No. 60 of 2020
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301), heard as a first appellate court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Oloolmaitai & 2 others v LEO Investment Limited [2022] KEELC 1907 (KLR)", Case Analysis (2022). Environment and Land Court Appeal (Narok) arising from Nakuru Business Premises Rent Tribunal Case No. 60 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1907/eng@2022-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.