Abdulkarim Rashid t/a Melodica v Elimu Investments Ltd & another
The bottom line
#Kenya's Environment and Land Court dismissed a tenant's appeal, ruling tribunals can refuse adjournments without violating fair hearing rights.
What this practically means
#Executive summary
#Key legal issues
#Interference with tribunal's discretionary refusal to adjourn
No error; the chairperson considered relevant facts including a prior similar application and the age of the proceedings
The court found the chairperson appreciated the distinct jurisdictions of the tribunal and the High Court, noted the contempt proceedings would not conflict with the tribunal's outcome, and weighed the 2016 vintage of the suit. The application was in substance one for stay of proceedings, and its refusal was a proper exercise of discretion per Mbogo v Shah.
Right to fair hearing under Article 50
Not breached; the right remained intact and exercisable at the substantive hearing
The main suit was not scheduled for hearing on the relevant date. The chairperson expressly reminded the appellant of his rights to object to documents, summon witnesses and be heard at the opportune time. The court found the complaint ventilated in vacuum, consistent with the due process dicta in the Kisumu County Assembly case.
Applicability of lis pendens
Inapplicable; no property alienation was in issue
The dispute concerned only the validity of a notice to terminate tenancy under Cap 301, not ownership or transfer of the suit property. The court, citing Naftali Ruthi Kinyua and Cooperative Bank of Kenya, accepted the doctrine survives under common law but confined it to cases where property may be alienated pendente lite.
Crafting of memorandum of appeal
The 26 grounds were prolix, ambiguous and raised issues never canvassed below
Adopting the Court of Appeal's admonition in Belgo Holdings against 'shock and awe' memoranda, the court criticised the 26 grounds and the 4573-page record of appeal as unnecessary overkill, directing counsel to confine records to pleadings, affidavits, proceedings and the decision appealed against.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a first-instance court or tribunal unless the decision is clearly wrong, based on misdirection, or on a failure to consider relevant matters
- Grounds of appeal must be precise, concise, devoid of ambiguity and argument, and must not raise issues never canvassed before the trial court
- The doctrine of lis pendens remains applicable in Kenya under common law despite repeal of section 52 ITPA, but only where suit property is liable to be alienated pendente lite
Court orders
#- 1.The appeal be and is hereby dismissed with costs to the Respondents
- 2.Costs of the Appeal to be agreed upon, and in default taxed and certified by the Taxing Officer of the Environment and Land Court in the usual manner
- On appeal from
- Business Premises Rent Tribunal, Nairobi (View Park Towers)
- Tribunal Case No. 464 of 2016 (Nairobi)
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal under the Landlord & Tenants (Shops, Hotels & Catering Establishment) Act, Chapter 301 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulkarim Rashid t/a Melodica v Elimu Investments Ltd & another", Case Analysis (2023). Environment and Land Appeal E112 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19333/eng@2023-08-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.