Villa Greens Limited v Creekview Limited (Environment and Land Miscellaneous Case E303 of 2025) [2026] KEELC 2129 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a struck-out appeal can be refiled, granting a tenant more time to appeal a rent tribunal decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection on res judicata should succeed
- 2.Whether the appellant/applicant should be granted leave to file the memorandum of appeal out of time
Key legal issues
#Whether the application was res judicata in light of the prior appeal in ELCLA E082 of 2022
The application was not res judicata because the prior appeal was struck out, not determined on merit.
The court found the parties and issues were the same in the earlier appeal, but the memorandum of appeal had been struck out on 15th August 2025 for failure to contain prayers, so the matter was never heard and finally decided on merit as Section 7 of the Civil Procedure Act requires. Relying on Amondi v Airtel Networks Kenya Limited, striking out is a procedural safeguard that allows a party to correct defects, and striking out is not dismissal.
Whether leave should be granted to file the memorandum of appeal out of time under Section 79G of the Civil Procedure Act and Section 15 of Cap 301
Leave was granted; the delay of about six weeks after the strike-out was not unreasonable and the appeal was never determined.
Applying the Salat principles on extension of time, the court found the application was filed slightly more than six weeks after the strike-out, which was not unreasonably long. The strike-out was intended to allow the applicant to correct errors, the memorandum of appeal was not determined at all, and no prejudice to the respondent was found to outweigh the applicant's right to have the appeal canvassed.
The proper characterisation of a preliminary objection
The court adopted the Mukisa Biscuit definition that a preliminary objection raises a pure point of law on assumed facts.
The court cited the Black Law Dictionary definition and the classic Mukisa Biscuit formulation, which states that a preliminary objection is in the nature of a demurrer, raising a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.
Legal principles established
#- Striking out is not the same as dismissal; a strike-out for a curable procedural defect does not finally determine a matter and does not bar a subsequent application.
- Extension of time is a discretionary, equitable remedy available only to a deserving party who lays a basis for it.
Court orders
#- 1.The appellant/applicant is granted leave to file the memorandum of appeal out of time against the judgment and/or decree entered by Hon. Gakuhi Chege on 26th August 2022 in BPRT Civil Suit No. 654 of 2019
- 2.The memorandum of appeal to be filed within 7 days from the date of the ruling and to be filed in ELCLA No. E082 of 2022
- 3.Costs shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal (BPRT Civil Suit No. 654 of 2019)
- BPRT Civil Suit No. 654 of 2019
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 79G of the Civil Procedure Act; Section 15 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act Cap 301; Articles 50 and 159 of the Constitution of Kenya
Relief refused
#Prayer that costs of the application be provided for
The court instead ordered costs to abide the outcome of the appeal
Costs
Costs shall abide the outcome of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appellant/ applicant is hereby granted leave to file the memorandum of appeal out of time against the judgement and/decree entered against the applicant by Hon. Gakuhi Chege on 26th day of August, 2022 in BPRT civil suit No 654 of 2019.
The memorandum of appeal to be filed within 7 days from the date hereof and it shall be filed in ELCLA No. E082 of 2022.
Costs shall abide the outcome of the appeal.
Striking out and dismissal do not constitute the same thing.
This court struck out the memorandum of appeal on 15th August, 2025 and thereafter slightly more than six weeks later, the appellant/applicant filed the instant application. In my view, this period of time is not unreasonably long.
Issues in the judgment
#The judgment states the appellant was the director, but the affidavit is deposed by Mwenda Sawa Chokera as director of the appellant/applicant while the notice of motion also seeks leave for 'the applicant' to lodge a memorandum of appeal; the party names are not given in full in the title/coram, making the actual litigant entities unclear.
Chronological inconsistency: the application is dated 30th September 2025 and described as filed after the strike-out, but the replying affidavit is sworn 2nd February 2026 and submissions dated 10th March 2026, while judgment is dated 21st April 2026 - the file span is plausible but the application is described as a 'fresh appeal' out of time more than three years after the tribunal judgment of 26th August 2022, and the court does not expressly account for the 2022-2025 period beyond the earlier appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Villa Greens Limited v Creekview Limited (Environment and Land Miscellaneous Case E303 of 2025) [2026] KEELC 2129 (KLR)", Case Analysis (2026). ELCLA No. E082 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2129/eng@2026-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.