Tangwar t/a Waridi Store v Rotich (Environment and Land Appeal E010 of 2025) [2025] KEELC 6094 (KLR)
The bottom line
#An Eldoret court refused to stop a shop eviction because the tenancy had already expired, meaning the tenant had no legal right left to protect.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant met the Giella v Cassman Brown requirements for a temporary injunction
The applicant failed to establish a prima facie case with a probability of success because the tenancy had expired by effluxion of time, extinguishing any basis for her occupation; consequently the other two limbs (irreparable harm and balance of convenience) fell away
The court found that upon expiry of the tenancy term the contractual relationship ended and any rights or interests inhering in the applicant were extinguished, leaving no legitimate basis for occupation. The applicant also failed to make full and candid disclosure of material facts regarding the tenancy status. Relying on American Cyanamid as cited in Naftali Ruthi Kinyua, the absence of a prima facie case ends any claim to interlocutory relief, so the remaining elements need not be examined.
Whether the mis-citation of Order 42 Rule 6 (6) (stay) instead of Order 40 Rule 1 (temporary injunction) was fatal to the application
No — under Article 159(2)(d) of the Constitution, citing the wrong provisions is not fatal and the court determined the application on merit under the correct provision, Order 40 Rule 1
The application sought a temporary injunction but was premised on Order 42 Rule 6 (6), which concerns stay. Following Republic v Anti-Counterfeit Agency Ex-Parte Surgippharm Limited, the court held that substantive justice under Article 159(2)(d) requires the court to apply the correct legal provision rather than defeat an application for procedural mis-citation, and proceeded to assess the injunction test under Order 40 Rule 1.
Legal principles established
#- Citing the wrong provisions of law is not fatal to an application; the court must determine it on merit under the correct provision pursuant to Article 159(2)(d) of the Constitution
- Upon expiry of the term of a tenancy, the contractual relationship ends and any rights or interests in the premises are extinguished
- An unopposed application must still be determined on its merits; the applicant must discharge the burden of proof
- Where there is no prima facie case, that is the end of any claim to interlocutory relief; the remaining Giella elements need not be considered
Court orders
#- 1.The Notice of Motion application dated 20th February, 2025 is not merited and is hereby dismissed
- 2.Dismissal with no orders as to costs
- On appeal from
- Business Premises Rent Tribunal
- Eldoret BPRT No. E061 of 2023
- Jurisdiction invoked
- Order 42 Rule 6 (6) of the Civil Procedure Rules as pleaded by the applicant; Section 13 (7) (a) of the Environment and Land Court Act, 2015 and Article 159(2)(d) of the Constitution relied on by the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tangwar t/a Waridi Store v Rotich (Environment and Land Appeal E010 of 2025) [2025] KEELC 6094 (KLR)", Case Analysis (2025). Notice of Motion dated 12th March, 2025 (arising from appeal against Eldoret BPRT No. E061 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6094/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.