Moyale Mall Limited & 2 others v Ali & 18 others (Environment and Land Appeal E012 of 2026) [2026] KEELC 5336 (KLR)
The bottom line
#A Kenyan land court corrected its judgment, gave tenants 60 days to vacate, and ruled it cannot reopen a concluded case except to fix clear errors.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What jurisdiction, if any, this Court retains over the Judgment delivered on 30th June 2026, and the scope of that jurisdiction, having regard to the residual jurisdiction invoked and section 15(4) of Cap. 301
- 2.Whether the corrective relief sought by prayers 3 and 4 ought to be granted
- 3.Whether, and to what extent, this Court may make the consequential and transitional directions sought by prayers 2, 5, 6 and 8
- 4.What effect, if any, the Ruling and Orders of the Tribunal dated 10th June 2026 have upon the disposal of this application
- 5.Whether it is open to this Court, upon this application, to pronounce upon the competence of the Tribunal to make the interim directions of 10th June 2026 while its jurisdiction was pending before this Court
- 6.Whether prayer 7, that the remitted matter be heard by a member other than Hon. Patricia May, ought to be granted
- 7.Whether the application, save for prayers 3 and 4, constitutes an abuse of the process of the Court
- 8.Who should bear the costs of the application
Key legal issues
#Scope of functus officio and residual jurisdiction after final judgment
The Court retains only the slip rule, power of genuine clarification, power to realise what it decided, and review under section 80; the residual jurisdiction under Benjoh was not exercised because the applicants disclaimed any error in the Judgment and the Gitutho test was not met
The court analysed five avenues for post-judgment engagement. The residual jurisdiction presupposes an injustice that no appeal can cure; the applicants affirmed the Judgment was sound, and there was no miscarriage of justice or erosion of public confidence. Section 3A inherent power supplements, but does not manufacture, jurisdiction, though it supports orders necessary for the ends of justice in working out the Court's own order. Section 15(4) finality cuts both ways: conclusive effect, but the decision must be made to work so far as the Court's powers permit.
Correction of the record under the slip rule (section 99)
Prayers 3 and 4 granted; the Judgment is corrected to reflect the order of 30th April 2026 striking out four respondents and the correct count of fourteen leases
Nothing in the reasoning or outcome turned on the number of respondents or leases; the retention of the original title and nineteen leases was an accidental slip or omission which section 99 exists to cure, being a failure of the Judgment to give effect to the Court's own inter partes order. No prejudice could be occasioned; left uncorrected, the errors would sow confusion in the remitted proceedings.
Effect of setting aside orders made without jurisdiction and transitional directions
Declared that no injunctive restraint from the 3rd October 2025 orders subsists; the respondents remain in occupation for a transitional 60-day period, then deliver vacant possession, subject to the controlled-tenancy qualification and the due-process and preservatory restraints
An order made without jurisdiction is a nullity; the respondents possess no rights by virtue of the set-aside orders, and their continued occupation on that footing rests on nothing. Yet the Court declined to pronounce a final order of possession before the remitted jurisdictional question is answered, granting instead a transitional regime conditioned on the Tribunal's determination of the controlled-tenancy issue and preserving both parties' positions.
Competence of the Tribunal's Ruling of 10th June 2026 and bias/recusal (prayer 7)
The Court declined to pronounce on the validity of the 10th June 2026 Ruling, but directed that the remitted references be heard by a member other than Hon. Patricia May, allocation by the Chairperson
The 10th June Ruling is not the subject of the appeal and cannot be reviewed on a post-judgment motion. On prayer 7, adverse rulings do not establish bias under the Rai/Porter v Magill fair-minded observer test, but it is not frivolous to ask whether an issue remitted for fresh determination should be heard by a member who has twice pronounced on it; following King Woolen Mills, the direction addresses the institution, not the individual, and requires no finding of bias.
Abuse of process
The application, save that part which failed for want of jurisdiction, was not an abuse of process
Abuse of process is a serious finding not made lightly; its central feature is improper use of judicial power. Here the applicants had to come to Court to obtain a conceded correction, the question of what governs the parties pending the Tribunal's determination was real, the Motion was brought openly and promptly with candid disclaimers, and failure for want of jurisdiction differs from abuse.
Legal principles established
#- An order made without jurisdiction is a nullity, and proceedings founded on it are incurably bad (Macfoy v United Africa Co. Ltd)
- Functus officio bars merit-based decisional re-engagement, not every post-judgment engagement; the test is the substance of the relief sought
- The slip rule jurisdiction is corrective, not creative
- A court may take proceedings incidental to, or the natural consequence of, its final decision, but only where there is something in the judgment to be realised
- Where a matter is remitted for rehearing and the judicial officer has twice pronounced on the very issue, a court may direct reallocation to a different officer without finding bias
- A tribunal whose jurisdiction is under challenge may make interim protective directions preserving the status quo without prejudging the challenge
Court orders
#- 1.Correction of the 30th June 2026 Judgment under section 99: deletion of the 3rd, 5th, 9th and 17th Respondents from the cause title and renumbering; substitution of fifteen (15) respondents and fourteen (14) leases for references to nineteen
- 2.Clarification that the remittal relates only to the references of the fifteen respondents who remained parties, constituted under fourteen leases
- 3.Clarification that the Judgment makes no determination in respect of the struck-out respondents or their Tribunal references
- 4.Declaration that no injunctive restraint arising out of the interim orders of 3rd October 2025 in BPRT Case No. E1107 of 2025 subsists, and the parties are restored to the position before 3rd October 2025
- 5.Respondents at liberty to remain in occupation for a transitional period of sixty (60) days from the date of the Ruling, and to deliver up vacant possession on or before expiry of that period
- 6.Order (v) of no force or effect in respect of any respondent whose tenancy is determined by the Tribunal, on the remitted preliminary issue, to be a controlled tenancy within section 2 of Cap. 301
- 7.Possession to be delivered up and, if necessary, recovered only through due process of law; neither party to resort to self-help
- 8.Pending expiry of the transitional period, respondents restrained from subletting, parting with possession, receiving goodwill from third parties, or carrying out structural alterations or change of user save with the applicants' prior written consent
- 9.The remitted references to be placed before and heard by a member of the Business Premises Rent Tribunal other than Hon. Patricia May, allocation by the Chairperson of the Tribunal
- 10.Nothing in the Judgment or the Ruling determines the validity, effect or subsistence of the Tribunal's Ruling and Orders of 10th June 2026 in BPRT Case No. E227 of 2026
- 11.Any relief not expressly granted deemed declined
- 12.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal
- BPRT Case No. E1107 of 2025 (consolidated with BPRT Case No. E227 of 2026)
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 99 and 27 of the Civil Procedure Act (Cap. 21); section 15(4) of Cap. 301; Article 159(2) of the Constitution
Relief refused
#Residual jurisdiction to reopen or supplement the Judgment (Benjoh/Gitutho route)
The applicants disclaimed any challenge to the Judgment's merits; the residual jurisdiction presupposes a judgment that miscarried, and the first two limbs of the Gitutho test were not made out
Pronouncement on the Tribunal's competence to make the interim orders of 10th June 2026
That Ruling is not the subject of this appeal, no appeal or judicial review of it is before the Court, and the Member has not been heard
Open-ended post-judgment directions defining the parties' rights pending the Tribunal's determination beyond the limited transitional regime granted
The Court is functus officio beyond the slip rule, clarification, and giving effect to what it decided; section 15(4) finality is not a warrant for open-ended supervision
Finding of abuse of process against the applicants
The application was brought openly, promptly, on notice, with candid disclaimers; part succeeded; failure for want of jurisdiction is not abuse
Costs
Each party shall bear its own costs of the application.
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.
Functus officio is not a rule that a court may do nothing after judgment. It is a rule that a court may not, after judgment, do again what it has already done, nor do for the first time what it ought to have been asked to do before.
The moment an application, however styled, invites the court to make new orders defining or conferring rights and obligations which the judgment itself did not define or confer, it has crossed from clarification into variation, and the court, being functus officio, must decline the invitation.
that which is void is in law a nullity, and every proceeding founded upon it is also bad and incurably bad
A litigant cannot in the same breath affirm that a judgment is sound and just and invoke a jurisdiction whose sole justification is that it is neither.
It is not a warrant for open-ended post-judgment supervision of a dispute remitted to the forum properly seised of it, and I have kept that firmly in view in framing the orders which follow.
The respondents shall be at liberty to remain in occupation of the suit premises for a transitional period of Sixty days (60) days from the date hereof, and shall on or before the expiry of that period deliver up vacant possession of the suit premises to the applicants.
The references remitted by the Judgment to the Business Premises Rent Tribunal shall be placed before, and shall be heard and determined by, a member of the Tribunal other than Hon. Patricia May; the allocation of the remitted references to such other member shall be undertaken by the Chairperson of the Tribunal.
Each party shall bear its own costs of the application.
Issues in the judgment
#The judgment text is severely garbled/corrupted in multiple passages, with interpolated text disrupting the record (e.g. paragraphs 5, 7, 33 and 38); some passages cannot be reconstructed with certainty
Coram indicates parties' representatives but the respondents' names are not stated in the text provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moyale Mall Limited & 2 others v Ali & 18 others (Environment and Land Appeal E012 of 2026) [2026] KEELC 5336 (KLR)", Case Analysis (2026). ELCA E012 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5336/eng@2026-08-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.