Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the excerpt provided· [2024] KEELC 1764 (KLR)

Orako Evans Oduor t/a Joint Basevana Enterprises Limited v Jeofrick N. Muinde t/a Kimu Auctioneers & another (Environment and Land Appeal 47 of 2023) [2024] KEELC 1764 (KLR)

Environment and Land Court
9 April 2024
1,226 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court protected a tenant's property from a second rent seizure, pausing enforcement until the appeal is decided.

What this practically means

#

Executive summary

#
The applicant, through Quinter Adoyo and Company Advocates, moved the Environment and Land Court at Homa Bay by a Notice of Motion dated 16th November 2023 seeking an interim injunction restraining the respondents from undertaking any activity on the subject matter pending the hearing and determination of an appeal arising from Homa Bay CMC 089 of 2022. The application was prompted by a threatened second distress for rent, the first distress having allegedly stripped the applicant's business of all tools of trade. The 2nd respondent opposed through grounds of opposition dated 28th November 2023, contending that the magistrate's court has no original jurisdiction over matters of distress for rent and that the Business Premises Rent Tribunal under Chapter 301 is the proper forum. In reply, the applicant submitted that jurisdiction was contested in the trial court and is a ground of appeal. The court considered the established principles for injunctive relief from Giella v Cassman Brown and Nguruman, its power under section 13(7)(a) of the Environment and Land Court Act to grant interim preservation orders, and authority on maintaining status quo. Noting that the jurisdiction of the trial court is heavily contested both in the application and the main appeal, the court granted interim preservation of the suit property, title number Kanyada/Kotieno/Katuma 'A'/2991, in lieu of the injunction sought, and restrained the respondents from enforcing the second distress for rent until the appeal is heard and determined. Costs of the application were ordered to abide the outcome of the appeal.

Key legal issues

#
01

Whether a temporary injunction should issue restraining the respondents from levying a second distress for rent pending appeal

Holding

The court declined the injunction in the terms sought but issued interim preservation orders preserving the suit property and restraining enforcement of the second distress until the appeal is determined.

Reasoning

The court applied the established triple test for injunctive relief from Giella v Cassman Brown as codified in Nguruman. However, noting that the jurisdiction of the trial court was hotly contested both in the application and the main appeal, the court found it more appropriate, invoking section 13(7)(a) of the Environment and Land Court Act, to preserve the suit property and maintain the status quo rather than grant the injunction sought.

p. 3
02

Jurisdiction of the magistrate's court over a dispute involving distress for rent arising from a lease

Holding

The court noted that jurisdiction was contested by the respondent, who argued the Business Premises Rent Tribunal under Cap 301 is the proper forum, but deferred the determination to the main appeal since the issue is a ground of appeal.

Reasoning

Citing the Supreme Court in Samuel Kamau Macharia, the court acknowledged that jurisdiction flows from the Constitution or legislation. The respondent contended the Business Premises Rent Tribunal, not the magistrate's court, is the first port of call. The applicant countered that jurisdiction was contested in the trial court and is the subject of the appeal. The court found the issue greatly contested and preserved the status quo pending full determination on appeal.

p. 3

Legal principles established

#
  • A court's jurisdiction flows from the Constitution or legislation or both.
  • The Environment and Land Court may grant interim preservation orders over the subject matter of an appeal.
  • A court may grant interlocutory orders to preserve property and maintain status quo pending determination.

Court orders

#
  1. 1.Interim preservation of suit property title number Kanyada/Kotieno/Katuma 'A'/2991 until the hearing and determination of the appeal on merit, in lieu of the temporary injunction sought
  2. 2.Respondents restrained from taking any further steps to enforce the 2nd distress for rent against the applicant until the appeal is heard and determined
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 40
  • Environment and Land Court ActSection 13(7)(a)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActChapter 301
  • Constitution of Kenya, 2010Article 159(1)

Cases cited (5)

  • Giella v Cassman Brown Co. Ltd
    (1973) EA 358
  • Nguruman Ltd v Jean Bonde Nielsen
    (2014) eKLR
  • Samuel Kamau Macharia and another v Kenya Commercial Bank Ltd and others
    (2012) KLR
  • Hutchings Biemer Ltd v Barclays Bank Ltd & 2 others
    (2006) eKLR
  • Ogada v Mollin
    (2009) KLR 620
On appeal from
Chief Magistrate's Court (Homa Bay)
CMC 089 of 2022
Jurisdiction invoked
Section 13(7)(a) of the Environment and Land Court Act, 2015

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Orako Evans Oduor t/a Joint Basevana Enterprises Limited v Jeofrick N. Muinde t/a Kimu Auctioneers & another (Environment and Land Appeal 47 of 2023) [2024] KEELC 1764 (KLR)", Case Analysis (2024). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1764/eng@2024-04-09

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