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ELCAllowedELC Appeal No E117 of 2026· [2026] KEELC 5176 (KLR)

Mohamed v Ali (Environment and Land Appeal E117 of 2026) [2026] KEELC 5176 (KLR)

Environment and Land Court
6 August 2026
2,329 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi landlord cannot evict a tenant from Eastleigh premises while her tribunal appeal is pending, because she keeps paying rent.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Milimani, Nairobi, on a notice of motion dated 12th June 2026 by the appellant, Safia Ahmed Mohamed, seeking temporary injunctions pending the hearing and determination of her appeal against a BPRT ruling of 5th June 2026. The tribunal had dismissed her reference for failure to comply with section 6(1) of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act (Cap 301), thereby giving effect to a termination notice issued on 22nd January 2026 over shop no 33 Sharif Building. The respondent opposed, contending that the tenancy had been terminated, no right remained capable of preservation, and any loss was compensable in damages, relying on Nguruman Limited v Jan Bonde Nielsen. The court, guided by Order 42 Rule 6(6) of the Civil Procedure Rules and the Patricia Njeri principles incorporating Giella v Cassman Brown, found that section 6 of Cap 301 permits a reference to be entertained despite non-compliance where sufficient reason exists, so dismissal without evaluating the merits or considering excusability was arguably an error of law - a prima facie case. Irreparable harm was shown since eviction would destroy her livelihood and defeat reinstatement, and the balance of convenience favoured preservation given her continued payment of rent. The application was allowed: eviction and interference with possession were restrained pending appeal, conditional on continued payment of rent, with police assistance ordered and costs in the cause.

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success on appeal

Holding

Yes - the tribunal's dismissal without evaluating the merits or considering whether non-compliance with section 6(1) was excusable raises arguable grounds amounting to a prima facie case.

Reasoning

The court linked the prima facie test to the prospects of the pending appeal, since the objective is to safeguard the appellant's rights by maintaining the status quo if need be. Section 6 of Cap 301 itself permits a reference to be entertained notwithstanding non-compliance with section 6(1) where there is sufficient reason. Dismissal without any merits evaluation or consideration of excusability is arguably an error of law, which is the ground raised in the memorandum of appeal, so the grounds are arguable and could render the appeal successful.

p. 9
02

Whether the applicant demonstrated irreparable harm not compensable by damages

Holding

Yes - eviction would dispossess the applicant of her livelihood and possible re-letting to a third party would make reinstatement impossible should the appeal succeed.

Reasoning

Execution proceedings had been initiated and an eviction notice served. If eviction occurred, the applicant would lose her business, her source of livelihood, and the respondent might lease the premises to a third party, meaning she could not be reinstated to her former position should the appeal succeed, establishing substantial loss and the need to preserve the status quo pending appeal.

p. 10
03

Where the balance of convenience lies

Holding

It tilts in favour of granting the injunction since the respondent would not be prejudiced while the applicant continues paying rent.

Reasoning

The court found that granting the injunction would prejudice neither party because the applicant was committed to continuing payment of rent during the pendency of the appeal, preserving the respondent's income stream while safeguarding the substratum of the appeal.

p. 10

Legal principles established

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  • Where section 6 of Cap 301 permits a reference to be heard despite non-compliance with section 6(1), dismissing a complaint without evaluating the merits or considering whether the omission was excusable is arguably an error of law capable of supporting a prima facie case on appeal.
  • Preservation orders pending appeal are intended to safeguard the substratum of litigation pending appellate proceedings.

Court orders

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  1. 1.Pending the hearing and determination of the appeal, the Respondent is restrained by himself, his agents, servants, employees or any person acting under his authority from evicting the Applicant from shop no 33 Sharif Building, locking the premises, removing the Applicant's goods, disconnecting utilities, interfering with her quiet possession and occupation or in any manner interfering with her tenancy
  2. 2.The Applicant will continue paying rent to the Respondent as and when it is due pending hearing and determination of the appeal
  3. 3.The Officer Commanding Station, Eastleigh Police Station, is directed to give the Applicant all necessary assistance to enforce the orders of the court
  4. 4.Costs shall be in the cause
On appeal from
Business Premises Rent Tribunal (BPRT)
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules - appellate jurisdiction to grant temporary injunction pending appeal where procedure for instituting an appeal from a subordinate court or tribunal has been complied with

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, "Mohamed v Ali (Environment and Land Appeal E117 of 2026) [2026] KEELC 5176 (KLR)", Case Analysis (2026). ELC Appeal No E117 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5176/eng@2026-08-06

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