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ELCPartially AllowedNot stated in judgment (ELC Appeal, Homa Bay)· [2024] KEELC 3929 (KLR)

Orako Evans Oduor t/a Joint Basevana Enterprises Limited v Jeofrick N. Muinde t/a Kimu Auctioneers & another (Environment and Land Appeal E047 of 2022) [2024] KEELC 3929 (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

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The Environment and Land Court in Homa Bay protected a tenant from a second distress for rent by ordering preservation of the property pending appeal, instead of the requested injunction.

What this practically means

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Executive summary

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By a Notice of Motion dated 16th November 2023, the applicant sought an injunction restraining the respondents and their agents from undertaking any activity on the subject matter pending the hearing and determination of an appeal, on grounds that the respondents had carried away the applicant's tools of trade in a first distress for rent (allegedly in breach of the lease) and were threatening a second distress. The 2nd respondent opposed through grounds of opposition contending that the court had no original jurisdiction over matters of distress for rent and that the Business Premises Rent Tribunal under Chapter 301 was the proper first port of call. Written submissions were filed by both parties. The court, per G.M.A. Ong'ondo J, noted the triple principles for injunctive relief from Giella v Cassman Brown as expounded in Nguruman, and its own mandate under section 13(7)(a) of the Environment and Land Court Act to grant interim preservation orders. Observing that the jurisdiction of the subordinate court over the dispute was heavily contested both in the application and in the main appeal, the court declined the injunction in the terms sought and instead ordered interim preservation of the suit property, title number Kanyada/Kotieno/Katuma 'A'/2991, and restrained the respondents from taking further steps to enforce the second distress for rent until the appeal is heard and determined. Costs of the application were to abide the outcome of the appeal.

Key legal issues

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01

Entitlement to temporary injunction pending appeal

Holding

The applicant was not granted the injunction in the terms sought; instead interim preservation orders issued because jurisdiction of the trial court was heavily contested in the appeal

Reasoning

The court applied the Giella v Cassman Brown principles as codified in Nguruman, but held that since the jurisdiction of the subordinate court was itself a ground of appeal, the merited order was preservation of the suit property and restraint on a second distress rather than the injunctive relief sought.

p. 3
02

Jurisdiction of the magistrate's court over distress for rent / tenancy dispute under Cap 301

Holding

The issue was identified as greatly contested but left for determination in the main appeal

Reasoning

Counsel for the respondent argued the Business Premises Rent Tribunal, not the magistrate's court, was the proper forum; the court noted the issue of jurisdiction was raised in the grounds of appeal and the replying affidavit, and framed five questions raised by counsel but deferred them to the hearing of the appeal.

p. 3

Legal principles established

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  • A court's jurisdiction flows from either 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 over it

Court orders

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  1. 1.Interim preservation of the suit property, title number Kanyada/Kotieno/Katuma 'A'/2911, until the hearing and determination of the appeal on merit, in lieu of the temporary injunctive relief sought
  2. 2.The respondents not to take 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

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Legislation

  • Civil Procedure Rules, 2010Order 40
  • Environment and Land Court Act, 2015Section 13(7)(a)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of KenyaGeneral (Business Premises Tribunal)
  • 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 referenced)
Jurisdiction invoked
Section 13(7)(a) of the Environment and Land Court Act, 2015; Article 159(1) of the Constitution of Kenya, 2010

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, "Orako Evans Oduor t/a Joint Basevana Enterprises Limited v Jeofrick N. Muinde t/a Kimu Auctioneers & another (Environment and Land Appeal E047 of 2022) [2024] KEELC 3929 (KLR)", Case Analysis (2024). Not stated in judgment (ELC Appeal, Homa Bay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3929/eng@2024-04-09

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