Wandaka v Mamalo Auctioneers & another (Environment and Land Appeal E012 of 2025) [2026] KEELC 2764 (KLR)

the vehicle in execution of distress for rent proceedings relating to premises previously leased by the Applicant from the late mother of the 2nd Respondent. 3. The Applicant contends that at the time of seizure, the vehicle was not located on or within the leased premises where the alleged distress was levied, contrary to the Distress for Rent Act (Cap 293, Laws of Kenya), which limits seizure to goods physically present on the demised premises. 4. The Applicant deposes that at the time of seizure, the vehicle was not located on or within the leased premises where the alleged distress was levied, contrary to the Distress for Rent Act (Cap 293, Laws of Kenya), which limits seizure to goods physically present on the demised premises. 5. The Applicant fears that unless the orders sought herein are granted, the Respondents are likely to sell the vehicle by private treaty or at public auction, thereby rendering his appeal nugatory. The vehicle is a commercial truck and his primary tool of trade. He appeals, arguing that the Respondents' continued detention of the vehicle is causing him irreparable financial loss, including accumulated storage charges, waste, vehicle depreciation, and disruption of his business operations. 6. The Applicant is willing to deposit Kshs. 300,000/=, the amount stated by the Respondents in their Notification of Sale dated September 10, 2024, in exchange for the immediate release of the vehicle pending the determination of the appeal. The Applicant argues that the Respondents will not sufier any prejudice if he makes this deposit. The 2nd Respondent’s Replying Afidavit. 7. The 2nd Respondent filed a replying afidavit, sworn on September 15, 2025. He contends that the Application lacks merit and is misconceived because this court, being an Appellate court, can only entertain an application for stay of execution and cannot arrogate jurisdiction to entertain an application for injunction. 8. The 2nd Respondent gave evidence that the Appellant/Applicant was his tenant, conducting business at the premises known as Title No. Nyeri/Municipality Block I/1200. The Appellant fell into rental arrears exceeding one year and, at the time of the levy of distress, owed Kshs—500,000.00/= in rent. 9. That the Appellant failed to pay the rent, and the Auctioneers carted away the Appellant's motor vehicle KAQ 320Z on 10th September 2024 as distress for rent. 10. After the Appellant/Applicant obtained an interim court order from the lower court, and given that his relationship and that of the Appellant were based on a tenancy of business premises, the 2nd Respondent filed a Defense and a Preliminary Objection challenging the lower court's jurisdiction and asserting that the Business Premises Rent Tribunal had exclusive jurisdiction. The lower court's jurisdiction was upheld, and the suit was struck out. This is what the Appellant challenges in this appeal. 11. Since there were no longer any interim orders prohibiting the sale of the motor vehicle in question, the Auctioneers proceeded to conduct the auction on 17th April 2024, and it was sold to one David Kandie, who fully paid the purchase price of Kshs 620,000.00. That sum was used to pay the Auctioneers' fees, sale commission, and storage fees amounting to Kshs: 389,000.00, and the balance of Kshs. 231,000.00 was sent to the 2nd Respondent, and he attached a letter from the 1st Respondent Auctioneers as evidence. 12. The 2nd Respondent deposed that the Appellant again attempted to place a caveat to prevent the transfer in the NTSA system. The purchaser applied for the removal of the caveat and for a forced transfer through Miscellaneous Application No. E040 of 2025, which was allowed on July 25, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2764/eng@2026-04-29 2

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13. With the sale and transfer of the vehicle having been efiected, the 2nd Respondent contends that events have overtaken the subject application and cannot be allowed. The Applicant has approached this court with unclean hands and has failed to do equity, and is therefore not entitled to the discretionary orders. 14. The Appellant/Applicant’s written submissions are neither in the Court file nor in the CTS system, despite the Court granting an additional seven days to comply on February 5, 2025. The Respondents’ written submissions. 15. Counsel for the Respondents placed reliance on the Supreme Court decision in Petition No. 20 [E023] of 2022; Isaac Aluoch Polo Aluochier vs IEBC and 17 Others, where the court emphasized that jurisdiction can only be conferred on a Court by either the Constitution or Statute. 16. Their submission is that the present Application is improperly filed before this Court and that the only recourse available to the Appellant, following the lower court's determination, was to institute a fresh claim before the Business Premises Rent Tribunal, which has proper jurisdiction over this matter. 17. Relying on the authority of Mrao Ltd vs First American Bank of Kenya and others, the Respondents submit that the Appellant has failed to establish a prima facie case because the Appellant expressly admitted falling into rental arrears, which justifies the 2nd Respondent's action of levying distress for rent against the Appellant's motor vehicle registration number KAQ 320Z. Further, the Appellant's rights were not infringed, as the distress for rent was lawfully undertaken to recover rent owed to the 2nd Respondent. 18. Secondly, the said motor vehicle was subjected to a public auction and has since been sold to one David Kandie. Thus, the Appellant's Application and Appeal have been overtaken by events, and the orders sought are therefore incapable of being granted. 19. In assessing whether the Appellant will sufier irreparable harm, the Respondents cited section 15 of the Distress for Rent Act, which provides that a party aggrieved by an unlawful or irregular distress for rent may recover the full sum as special damages. 20. Counsel for the Respondents relied on the authorities in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR and Nation Media Group & 2 others v John Harun Mwau [2014] eKLR, arguing that the balance of convenience favored the Respondents because the motor vehicle had already been lawfully auctioned and sold to a third party. 21. Further, the Respondents argue that a Court cannot issue an order that would afiect the rights of a third party who has not been enjoined in the suit, as held in Benson Murithi Nyagah v Kenya Industrial Estate & another [2017] eKLR. They urge the Court to dismiss the Application with costs to the Respondents. Analysis and determination 22. The Applicant seeks an injunction against the sale, disposal, or alienation of the motor vehicle registration number KAQ 320Z, which was seized by the 1st Respondent auctioneers, as instructed by the 2nd Respondent, for distress for rent. The 2nd Respondent argued that, being an appellate Court, it cannot grant an injunction. However, this is not the position, as every Court has the power to prevent the wasting or alienation of the property that is the substratum of the suit under Order 40 of the Civil Procedure Rules, regardless of whether it is exercising appellate jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2764/eng@2026-04-29 3

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23. Alnashir Visram J. (as he then was) was quoted as follows in the case of Patricia Njeri & 3 Others v National Museum of Kenya [2004] eKLR on injunctions pending appeal: “ In the Venture Capital case [Venture Capital & Credit Limited vs Consolidated Bank of Kenya Ltd Civil Application No Nairobi 349 of 2003 (174 of 2003 UR)], the Court of Appeal said that an order for injunction pending appeal is a discretionary matter. The discretion must, however, be “exercised judicially and not in whimsical or arbitrary fashion.” This discretion is guided by certain principles some of which are as follows: (a) The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited vs Kerr (1985) KLR 840 (cited in Venture Capital ). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries vs KCB (1982 – 88) KLR 1088 (also cited in Venture Capital) (b) The discretion should be refused where it would infiict greater hardship than it would avoid (See Madhupaper supra). (c) The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417 (cited also in Venture Capital). (d) The Court should also be guided by the principles in Giella vs Cassman Brown & Company Ltd (1973) EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital).” 24. The first criterion for granting an injunction pending appeal, as summarized above, is that the Appellant must have an arguable, non-frivolous appeal. In the present case, the appeal is from the ruling of Hon. Viola Sandra Kosgei (SRM) delivered in the trial court suit, MCELC/E061/2024, on April 8, 2025. The Honorable Learned Magistrate upheld the Defendants’ preliminary objection that the suit should have been filed with the Business Premises Rent Tribunal, and the Trial Court struck out the suit with costs to the Defendants for want of jurisdiction. 25. The classic case on jurisdiction is the Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd (1989) KLR 1, where Nyarangi J.A. held as follows: “ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 26. Thus, the Court must immediately set down its tools if it finds itself without the requisite jurisdiction to hear and determine the case. 27. This dispute stems from a deteriorating Landlord-Tenant relationship between the parties, which led the Landlord, the 2nd Respondent herein, to levy distress for unpaid rent and to order the seizure of the Appellant's Motor Vehicle Registration No. KAQ 320Z. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2764/eng@2026-04-29 4

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28. Section 12(1)(e) and (h) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap. 301, which establishes the Business Premises Rent Tribunal, reads as follows: “ A Tribunal shall, in relation to its area of jurisdiction have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in addition to and without prejudice to the generality of the foregoing shall have power— 29. (e) to make orders, upon such terms and conditions as it thinks fit, for the recovery of possession and for the payment of arrears of rent and mesne profits, which orders may be applicable to any person, whether or not he is a tenant, being at any material time in occupation of the premises comprised in a controlled tenancy; (h) to permit the levy of distress for rent.” The Environment and Land Court has been granted appellate jurisdiction over the Tribunal's decisions under section 15, which provides that: “ “ 15. Appeal to court (1)Any party to a reference aggrieved by any determination or order of a Tribunal made therein may, within thirty days after the date of such determination or order, appeal to the Environment and Land Court: Provided that the Environment and Land Court may, where it is satisfied that there is suficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.” 30. However, this is not an appeal from a decision of the Business Premises Rent Tribunal but an appeal from the Trial Court's decision that the dispute should have been filed with the Tribunal. 31. In my view, the Appellant has filed an appeal in the wrong forum because the Court lacks jurisdiction to hear and determine the matter. It is a trite law that where another adequate avenue or forum exists to resolve a dispute, a party ought to pursue that avenue or forum rather than invoke the jurisdiction of the wrong court. This principle was well set out in the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, where the Court of Appeal held that: “ … In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” 32. Further, the 2nd Respondent has informed the Court that the motor vehicle has already been sold to a third party, David Kandie, who is not a party to this suit. Thus, the application has been overtaken by events, and granting the orders prayed for would be an academic exercise. Mativo J (as he then was) in the case of Evans Kidero v Speaker of Nairobi City County Assembly & another [20158] eKLR found as follows in a case that had been overtaken by events: “ No court of law will knowingly act in vain. The general attitude of courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose…... A suit is academic where it is merely theoretical, makes empty sound and of no practical utilitarian value to the plaintifi even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2764/eng@2026-04-29 5

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and humanity. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use.” 33. Thus, the instant application lacks merit and is hereby dismissed with costs. DATED, SIGNED, AND DELIVERED VIRTUALLY IN NYERI ON THIS 29TH DAY OF APRIL, 2026. E. K. MAKORI JUDGE In the Presence of: Ms. Munene for the Respondents Dennis: Court Assistant In the Absence of: Mr. Nyabuti for the Appellant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2764/eng@2026-04-29 6

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