Mohamed & another v Bilel (Environment and Land Appeal 37 of 2023) [2025] KEELC 4545 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there was a competent appeal before the court
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.
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.
Whether the appeal had merit in light of the appellants' prior pursuit of review
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.
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.
Who bears the costs
The appellants, as costs follow the event under section 27 of the Civil Procedure Act.
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.
Legal principles established
#- 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
#- 1.The appeal filed through the memorandum of appeal dated the 26th October 2023 is struck out.
- 2.The appellants to bear the respondent's costs.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.