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ELCStruck OutELC Appeal (Mombasa) - memorandum of appeal dated 26th October 2023· [2025] KEELC 4545 (KLR)

Mohamed & another v Bilel (Environment and Land Appeal 37 of 2023) [2025] KEELC 4545 (KLR)

Environment and Land Court
18 June 2025
3,593 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out this rent tribunal appeal because the appellants never filed the appeal record and had already tried review.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Mombasa against the decision of Hon. Gakuhi Chege in Mombasa BPRT Case No. 261 of 2020 delivered on 6th October 2023, by which the tribunal declined the appellants' review application. The appellants raised eleven grounds, principally that the tribunal erred in finding the respondent to be the landlord, in conferring rights of administration over a deceased's estate contrary to the Succession Act, and in dealing with property said to be under Wakf Commission management. They sought that the appeal be allowed, that the judgment of 6th October 2023 and the ruling of 15th July 2022 and consequential orders be lifted, and a declaration that they met the required standards for review. After directions to file the record of appeal, the appellants and their counsel failed to attend successive mentions and filed no record. The court framed three issues: whether there was a competent appeal, whether it had merit, and who should bear costs. Relying on HA v LB [2022] eKLR, Sunrise Hauliers Limited v Motaroki and Gab International Construction Co. Ltd v Zachary Kabucho Ndungu, the court held that a party who has pursued review cannot appeal the same decision, as that would amount to abuse of process. It also noted the impugned ruling of 6th October 2023 was never availed on the record, and the appeal, never admitted, was struck out. The appellants were ordered to bear the respondent's costs.

Key legal issues

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01

Whether there was a competent appeal before the court

Holding

No. The impugned tribunal ruling of 6th October 2023 was never placed before the court; no record of appeal was filed despite directions, and the appeal was never admitted. It was liable to be struck out.

Reasoning

The court had previously noted, when dealing with the stay application, that no copy of the ruling or judgment of 6th October 2023 was attached to the application. On preparing the judgment it again perused the record and found no copy of the impugned ruling. Without the decision under attack, the court could not determine the appeal on conjecture, and the appellants' failure to file the record of appeal when directed left the never-admitted appeal fit for striking out.

p. 7
02

Whether the appeal had merit in light of the appellants' prior pursuit of review

Holding

The appeal was limited to the ruling of 6th October 2023 (refusal of review), and a party who has pursued review cannot appeal the same decision; doing so is an abuse of process.

Reasoning

Relying on HA v LB [2022] eKLR, Sunrise Hauliers Limited v Motaroki and Gab International Construction Co. Ltd v Zachary Kabucho Ndungu, the court held that review and appeal over the same order cannot be pursued concurrently or one after the other. The appellants' review application had been declined by the tribunal on 6th October 2023, and appealing that refusal after exercising the review option opened impermissible fresh fronts in litigation.

p. 6
03

Who bears the costs

Holding

The appellants, as costs follow the event under section 27 of the Civil Procedure Act.

Reasoning

The court found no good reason to depart from the edict that costs follow the event. The appeal failed and was struck out, so the appellants were ordered to bear the respondent's costs.

p. 7

Legal principles established

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  • A party who has pursued review of a decision cannot thereafter appeal against the same decision, as doing so amounts to abuse of the court process.
  • Prayers not supported by pleadings cannot be granted; parties are bound by their pleadings.
  • Costs follow the event under section 27 of the Civil Procedure Act unless the court for good reason directs otherwise.

Court orders

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  1. 1.The appeal filed through the memorandum of appeal dated the 26th October 2023 is struck out.
  2. 2.The appellants to bear the respondent's costs.

Authorities

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Legislation

  • Civil Procedure Actsection 27
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsections 1A and 1B
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActNot specified
  • Civil Procedure RulesOrder 45 rule 1; Order 44
  • Court of Appeal RulesRule 77(1); rule 74; rule 58; rule 81(1)
  • Succession ActNot specified

Cases cited (8)

  • HA versus LB [2022] eKLR
    [2022] eKLR
  • Orero vs. Seko [1984] KLR 238
    [1984] KLR 238
  • Kisya Investments Ltd vs. Attorney General and Another Civil Appeal No. 31 of 1995
    Civil Appeal No. 31 of 1995
  • Yani Haryanto vs. E. D. & F. Man. (Sugar) Limited Civil Appeal No. 122 of 1992
    Civil Appeal No. 122 of 1992
  • The Chairman Board of Governors Highway Secondary School vs. William Mmosi Moi Civil Application No. 277 of 2005
    Civil Application No. 277 of 2005
  • Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No. 363 of 2009
    Nairobi (Milimani) HCCC No. 363 of 2009
  • Sunrise Hauliers Limited versus Motaroki (Appeal E019 of 2023) [2024] KEELRC 631 (KLR)
    (Appeal E019 of 2023) [2024] KEELRC 631 (KLR)
  • Gab International Construction Co. Ltd versus Zachary Kabucho Ndungu
On appeal from
Business Premises Rent Tribunal (Mombasa)
Mombasa BPRT Case No. 261 of 2020
Jurisdiction invoked
Appeal from a Business Premises Rent Tribunal decision under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, sitting in the Environment and Land Court

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, "Mohamed & another v Bilel (Environment and Land Appeal 37 of 2023) [2025] KEELC 4545 (KLR)", Case Analysis (2025). ELC Appeal (Mombasa) - memorandum of appeal dated 26th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4545/eng@2025-06-18

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