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ELCDismissedNotice of Motion dated 12th March, 2025 (arising from appeal against Eldoret BPRT No. E061 of 2023)· [2025] KEELC 6094 (KLR)

Tangwar t/a Waridi Store v Rotich (Environment and Land Appeal E010 of 2025) [2025] KEELC 6094 (KLR)

Environment and Land Court
18 September 2025
1,929 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a Notice of Motion dated 12th March, 2025, the appellant, a tenant, sought a temporary injunction restraining the respondent from evicting her from Eldoret Municipality/Block 6 – Lockup Shop No. 026 following a ruling of the Business Premises Rent Tribunal in Eldoret BPRT No. E061 of 2023 which dismissed her reference against a notice of termination, pending the hearing and determination of her appeal. The application was supported by her affidavit but was unopposed, no response having been filed despite service. The court framed a single issue: whether the applicant had met the requirements for a temporary injunction. It noted the application cited Order 42 Rule 6 (6) (stay) instead of the injunction provisions, but held under Article 159(2)(d) that citing the wrong provision is not fatal, and determined the matter under Order 40 Rule 1 and Section 13(7)(a) of the Environment and Land Court Act. Applying the Giella v Cassman Brown test sequentially, the court found the tenancy had expired by effluxion of time on 6/8/2024, extinguishing any rights of occupation, so no prima facie case was established; the remaining limbs therefore fell away. The court also faulted the applicant for failing to make full and candid disclosure on the tenancy status. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the applicant met the Giella v Cassman Brown requirements for a temporary injunction

Holding

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

Reasoning

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.

p. 4
02

Whether the mis-citation of Order 42 Rule 6 (6) (stay) instead of Order 40 Rule 1 (temporary injunction) was fatal to the application

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 20th February, 2025 is not merited and is hereby dismissed
  2. 2.Dismissal with no orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure RulesOrder 42 Rule 6 (6)
  • Civil Procedure RulesOrder 40 Rule 1
  • Environment and Land Court Act, 2015Section 13 (7) (a)

Cases cited (7)

  • Republic v Anti-Counterfeit Agency & 2 others Ex-Parte Surgippharm Limited
    [2014] eKLR
  • Giella vs Cassman Brown and Co. Ltd
    [1973] EA. 358 at 360
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • Mrao Ltd vs. First American Bank of Kenya and 2 Others
    (2003) KLR 125
  • Gichinga Kibutha…Vs…Caroline Nduku
    (2018) eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
    [2015] eKLR
  • American Cyanamid vs Ethicon Limited
    [1975] AC 396
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

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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, "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.