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ELCDismissedNot stated in the judgment (ruling on Notice of Motion dated 08.12.2025, arising from Meru BPRT Case No. E023 of 2025)· [2026] KEELC 636 (KLR)

Muriuki v Muthama (Environment and Land Miscellaneous Application E057 of 2025) [2026] KEELC 636 (KLR)

High Court of Kenya (Meru)
4 February 2026
4,495 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan tenant lost a bid to appeal out of time because he had already sought a review of the same tribunal orders — you must choose one remedy.

What this practically means

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Executive summary

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The applicant, a tenant, sought leave to appeal out of time against exparte orders of the Business Premises Rent Tribunal issued on 28 April 2025 in Meru BPRT Case No. E023 of 2025, together with stay of execution pending the intended appeal, contending that the termination notice was never served and that the tribunal orders were irregular. The respondent filed no response but, with the court's leave, addressed the court on points of law, submitting inter alia that no stay could issue absent an appeal and that the delay was unexplained. The court framed four issues. First, an unopposed application does not automatically succeed; the court retains a discretion and must consider the law, applying Konchellah v Sunkuli. Second, stay of execution under Order 42 Rule 6 presupposes an existing appeal; since there is 'nothing called or termed as an intended appeal' before the court, the stay prayers were mounted in a vacuum. Third, having exercised the right of review against the tribunal orders - a review application dismissed on 18 November 2025 - the applicant's right of appeal against the original orders was extinguished; the recourse was an appeal against the review ruling, following Paul Misori Orago v City Council of Nairobi. Fourth, the delay of over eight months was inordinate and unexplained, invoking the doctrine of laches and the County Executive of Kisumu extension-of-time principles. The application dated 8 December 2025 was dismissed in its entirety, with each party bearing its own costs.

Key legal issues

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01

Whether an unopposed application must be automatically allowed

Holding

No; the court retains a discretion and must consider the application and the law even where unanswered

Reasoning

The court held that a respondent who files no response retains a right of audience on points of law under Article 50(1) of the Constitution, and that an unopposed application must still satisfy the court on the law and merits. The applicant's contrary submission was held to be a misapprehension of the law, relying on the Supreme Court's decision in Konchellah v Sunkuli.

p. 4
02

Whether the court has jurisdiction to grant stay pending an intended appeal

Holding

No; stay of execution under Order 42 Rule 6 presupposes an existing appeal, and before this court there is no such thing as an intended appeal

Reasoning

Order 42 Rule 6(1) and (2) requires an appeal as the foundation of a stay application. For the Court of Appeal a notice of appeal suffices, but before this court there must be an appeal mounted under Order 42 Rule 1 and Section 79G or nothing. Since no appeal had been filed, the stay prayers were mounted in a vacuum and the court lacked jurisdiction.

p. 6
03

Whether leave can be granted to appeal against orders already subjected to a dismissed review application

Holding

No; pursuing review extinguishes the right of appeal against the original order, and the recourse is an appeal against the review ruling

Reasoning

Relying on Paul Misori Orago v City Council of Nairobi, the court held that a party must choose between review and appeal; having exercised the right of review under Section 12 of the Landlord and Tenant Act and Order 45, the applicant's right of appeal against the original tribunal orders was spent. Any attempt to pursue both constitutes an abuse of process.

p. 7
04

Whether the applicant established a basis for extension of time

Holding

No; the delay of over eight months was inordinate and unexplained, and leave does not issue as of right

Reasoning

Applying the County Executive of Kisumu principles, the court found the applicant had not satisfactorily explained the delay from 28.04.2025 to 08.12.2025, a period exceeding eight months. The supporting affidavit's averments were unsubstantiated and devoid of probative value, invoking the doctrine of laches.

p. 8

Legal principles established

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  • An unopposed application does not automatically succeed; the court must still consider it and apply the law
  • Stay of execution under Order 42 Rule 6 can only be granted within an existing appeal; there is no jurisdiction to grant stay pending an intended appeal
  • A party who has pursued review of an order and been dismissed cannot thereafter appeal against the original order; the right of appeal is extinguished

Court orders

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  1. 1.The Application dated 08.12.2025 be and is hereby dismissed
  2. 2.Each party shall bear own costs of application
On appeal from
Business Premises Rent Tribunal (Meru BPRT)
E023 of 2025
Jurisdiction invoked
Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act; Order 42 Rule 6 of the Civil Procedure Rules

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, "Muriuki v Muthama (Environment and Land Miscellaneous Application E057 of 2025) [2026] KEELC 636 (KLR)", Case Analysis (2026). Not stated in the judgment (ruling on Notice of Motion dated 08.12.2025, arising from Meru BPRT Case No. E023 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/636/eng@2026-02-04

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