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ELCDismissedEnvironment and Land Appeal E098 of 2022· [2023] KEELC 16857 (KLR)

Koinange & another v Royal Gardens Limited

Environment and Land Court at Busia
13 April 2023
AOAA Omollo
2,687 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that a Tribunal's refusal to recuse itself can be appealed without special permission, clearing the appeal to proceed.

What this practically means

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Executive summary

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Royal Gardens Limited filed a preliminary objection against the Appellants' appeal and Notice of Motion dated 18th October 2022, contending that the Environment and Land Court lacked jurisdiction because the appeal, from the Business Premises Rent Tribunal's dismissal of the Appellants' recusal application, did not lie as of right under Order 43 rule 1(1) of the Civil Procedure Rules and Section 75 of the Civil Procedure Act, and no leave had been sought or obtained. The Respondent relied on Section 15 of Cap 301 and authorities holding that only parties to a Reference, not complainants under Section 12(4), may appeal. The Appellants countered that the impugned ruling did not touch the Section 12(4) complaint, that the application invoked the court's discretionary powers under Sections 1A, 1B and 3A of the Civil Procedure Act and Articles 50 and 159 of the Constitution, and that leave had been orally sought and granted when the ruling was delivered. Omollo J held that a recusal ruling is procedural and does not touch the merits of the complaint; that the Respondent had not pointed to any provision barring an appeal against a refusal of recusal; and that the objection was premature, the record of appeal not having been filed. The preliminary objection was dismissed with costs to the Appellants, allowing the appeal to proceed.

Key legal issues

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01

Whether an appeal lies as of right against a Tribunal ruling dismissing a recusal application

Holding

The recusal ruling is procedural and does not determine the complaint; the Respondent failed to show any provision barring such an appeal, so the appeal could proceed without leave.

Reasoning

The court noted the impugned application was brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51(1) and Articles 50 and 159 of the Constitution, invoking discretionary powers not limited by Order 43. The recusal question touches procedure, not the merits of the Section 12(4) complaint, and the Respondent cited no provision ousting the right of appeal against such an order.

p. 5
02

Whether the preliminary objection was ripe and sustainable

Holding

The objection was premature and without merit; the record of appeal had not been filed and the court could not discern the provisions under which the impugned application was grounded from the objection itself.

Reasoning

Applying Mukisa Biscuits, the court found it could not discern on the face of the objection the provisions under which the application dated 15th September 2022 was grounded. The Respondent also conceded the complaint was undetermined, and the Appellants' claim of oral leave, if true, would nullify the objection.

Legal principles established

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  • A recusal ruling is a procedural, interlocutory matter that does not touch the merits of the complaint, and no provision bars an appeal against an order refusing recusal.
  • It would be a miscarriage of justice to narrowly interpret proceedings commenced under Section 12(4) of Cap 301 so as to gag a party from exhausting remedies.

Court orders

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  1. 1.The Preliminary Objection is dismissed with costs to the Appellants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 74, 75
  • Civil Procedure RulesOrder 43 rules 1(1) and (2); Order 51 rule 1
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActCap 301, Sections 2, 12(4), 15(1)
  • Constitution of Kenya, 2010Articles 50(1), 159

Cases cited (9)

  • Mike Muli v Justus Mwandikwa Kilonzo & 4 Others
    (2022) eKLR

    Right of appeal under Section 15 of Cap 301 is available only to parties to a Reference, not the maker of a mere complaint.

  • Re-Heptulla Properties Ltd
    (1979) eKLR

    'Reference' in Section 15 bears its technical meaning and excludes complaints.

  • Gatanga General Stores & 2 Others v Githere
    (1988) eKLR

    Three sources of appeals under Cap 301, including procedural appeals; express words needed to deprive a litigant of the right of appeal.

  • Choitram v Mystery Model Hair Saloon
    [1972] EA 525

    Scope of complaints under Section 12(4) - complaints of a minor character.

  • Machenje v Kibarabara
    [1973] EA 481

    Followed Choitram on the scope of Section 12(4) complaints.

  • Gatimu Kinguru v Muya Gathangi
    (1976-1980) 1 KLR

    Courts should not whittle down the rights and privileges of the subject in interpreting statutes.

  • E.A Railways Corporation v Anthony Sefu
    (1983) EA 327

    A statute cannot oust the jurisdiction of a superior court absent clear and unambiguous language.

  • Transallied Limited v Sakan Trading Limited
    (2016) eKLR

    A determination of a complaint under Section 12(4) is appealable under Section 15(1) of the Act.

  • Mukisa Biscuits v West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection - must be explainable on its face without adducing facts.

On appeal from
Business Premises Rent Tribunal (Nairobi Business Premises Rent Tribunal Case No. E781 of 2022)
E781 of 2022
Jurisdiction invoked
Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301; Sections 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules on appeals as of right versus appeals with leave

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, "Koinange & another v Royal Gardens Limited", Case Analysis (2023). Environment and Land Appeal E098 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16857/eng@2023-04-13

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