Kemunton v Ombogo
The bottom line
#A Kenyan court ruled that once you choose to seek a review of a tribunal decision, you lose the right to appeal that same decision.
What this practically means
#Executive summary
#Key legal issues
#Territorial jurisdiction of the ELC at Kisumu over property in Kericho County
The preliminary objection was overruled; the Kisumu ELC has jurisdiction because the BPRT that issued the impugned decision sits in Kisumu, within its appellate/supervisory jurisdiction, creating overlapping jurisdiction with Kericho ELC.
Section 12 CPA places suits over immovable property where the property sits, so Kericho ELC has jurisdiction. But the matter is not an originating suit; it is a miscellaneous application for leave to appeal a BPRT decision, and the Kisumu BPRT falls within the Kisumu ELC's appellate jurisdiction. Procedural law is the handmaiden of justice; with both venues having nexus, the election of Kisumu is not fatal, and the overriding objective favours hearing the application.
Extension of time and the doctrine of election between review and appeal
The Applicant, having elected review and exhausted it upon dismissal, is precluded from appealing the original judgment; extension of time refused.
Section 80 and Order 45 Rule 1 make review available only where no appeal has been preferred; the remedies are mutually exclusive. Following Chairman Board of Governors Highway Secondary School v William Mmosi Moi and Muchanje, once review is pursued to conclusion the appellate jurisdiction over the original order is extinguished. The proper course was to appeal the review ruling, which was not done. The 15 December 2025 correction was a slip-rule rectification, not a fresh order.
Stay of execution pending appeal
Not granted, as the intended appeal was held procedurally incompetent and the motion was dismissed.
Stay under Order 42 Rule 6 presupposes a competent appeal pending. Having found the intended appeal incompetent because the review remedy was exhausted, the court dismissed the entire motion, including the stay prayer, without separate analysis of the stay criteria.
Legal principles established
#- A party who elects to pursue review and exhausts it cannot thereafter seek an extension of time to appeal the same order.
- A slip-rule correction of a decree is administrative rectification, not a fresh judgment triggering a new right of appeal.
- Where both the seat of the tribunal and the locus of the property have nexus, election of venue is not a fatal jurisdictional defect.
Court orders
#- 1.The Court hereby overrules the Respondent's Notice of Preliminary Objection dated 16th March 2026.
- 2.The Applicant's Notice of Motion dated 3rd March 2026, seeking an enlargement of time to file an appeal and a stay of execution, is hereby dismissed.
- 3.The Applicant shall bear the Respondent's costs of this application.
- On appeal from
- Business Premises Rent Tribunal (BPRT) at Kisumu
- BPRT/E032/2022
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 79G of the Civil Procedure Act; Order 50 Rule 6, Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules 2010; Article 50(1) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemunton v Ombogo", Case Analysis (2026). Environment and Land Miscellaneous Case E005 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5641/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.