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ELCDismissedNotice of Motion application dated 21st June, 2024· [2024] KEELC 6017 (KLR)

Jiwa t/a Jiwa Properties v Jiwa & another (Miscellaneous Civil Application E038 of 2023) [2024] KEELC 6017 (KLR)

Environment and Land Court
17 September 2024
LNL.L Naikuni
3,149 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to undo an order requiring a landlord to deposit the decretal sum in escrow, confirming that review is not a second chance to argue your case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (L.L Naikuni, J) determined a Notice of Motion dated 21st June 2024 by Yusuf M.N. Jiwa T/A Jiwa Properties seeking review of the Court's ruling of 20th February 2024, in which the Court had granted him leave to appeal out of time against a Business Premises Rent Tribunal decision (BPRT Case No. 151 of 2021, Rosemin Nazerali Jiwa & Aun Jiwa v Yusuf M.N. Jiwa) and stayed execution on condition that he deposit the decretal sum in an interest-earning escrow joint account held by the parties' advocates. The Applicant, anchored on Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, argued that the Tribunal's decision had not made a finding on rent due capable of recovery as a decretal sum (having only increased and backdated rent to 1st August 2019), that he was a continuing tenant paying rent and not in default, and that continued payment of rent should suffice. The Court framed two issues: whether a case for review had been made out, and costs. It applied Section 80 and Order 45 Rule 1, holding review is confined to error apparent on the face of the record, is not an appeal, and 'sufficient reason' must be analogous to the specified grounds. The Applicant pinpointed no such error, had proposed no security in the stay application, and although the application was made without unreasonable delay, it failed. The application was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Whether the Applicant made out a case for review and setting aside of the decretal sum deposit order

Holding

The application for review was dismissed as the Applicant failed to establish any ground for review under Section 80 and Order 45 Rule 1

Reasoning

The Court restated that the power of review is discretionary and must be exercised judiciously. The Applicant failed to pinpoint any error apparent on the face of the record. 'Sufficient reason' must be analogous to the specified grounds. In the original stay application the Applicant had proposed no security, and it is the court's discretion to determine security. The application was also found to have been brought without unreasonable delay but was nonetheless devoid of merit.

p. 6
02

Who meets the costs of the application

Holding

The Court elected not to award any costs despite the general rule that costs follow the event

Reasoning

Costs are at the discretion of the Court and, per the proviso to Section 27 of the Civil Procedure Act, costs follow the event. A successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. Here the Court elected not to award any costs.

p. 7

Legal principles established

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  • Section 80 of the Civil Procedure Act confers the power of review while Order 45 sets out the restrictive rules and grounds for its exercise
  • Review is not an appeal; it must be confined to error apparent on the face of the record
  • 'Sufficient reason' for review means a reason sufficiently analogous to those specified in the rule
  • It is the discretion of the court to determine the security for due performance upon ordering a stay

Court orders

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  1. 1.That the Notice of Motion application dated 21st June, 2024 be and is hereby found to be devoid of merit thus it is disallowed in entirety without costs
  2. 2.That there shall be no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Civil Procedure Rules, 2010Section 79B
  • Civil Procedure Rules, 2010Orders 42 Rules 11, 13 and 16
  • Constitution of Kenya, 2010

Cases cited (5)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Sarder Mohamed v Charan Singh Nand Sing and Another
    [1959] EA 793
  • Sese (Suing as the Administrator of the Estate of the Late Shali Sese) v Karezi & 8 others
    (Environment and Land Constitutional Petition 32 of 2020) [2023] KEELC 17427 (KLR)
  • Focin Motorcycle Co. Limited v Ann Wambui Wangui & Anor
    [2018] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Limited
    [1967] EA 28
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act, Cap. 21 and Order 45 Rule 1 of the Civil Procedure Rules, 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, "Jiwa t/a Jiwa Properties v Jiwa & another (Miscellaneous Civil Application E038 of 2023) [2024] KEELC 6017 (KLR)", Case Analysis (2024). Notice of Motion application dated 21st June, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6017/eng@2024-09-17

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