Adolwa v Evangelical Lutheran Church in Kenya (Environment and Land Appeal E074 of 2024) [2026] KEELC 3747 (KLR) (18 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCLA NO. E074 OF 2024** PATRICK ADOLWA ………………………...……APPELLANT/APPLICANT VERSUS EVANGELICAL LUTHERAN CHURCH IN KENYA….…. RESPONDENT *(Being an appeal from the ruling and decree delivered by Hon. Joyce Akinyi Osodo on the 29th day of August 2024 in the Business Premises Rent Tribunal Case No. E016 OF 2024, Kisumu)* **BETWEEN** PATRICK ADOLWA ………………………......……TENANT/APPLICANT VERSUS EVANGELICAL LUTHERAN CHURCH IN KENYA .……………………… LANDLORD/RESPONDENT **R U L I N G** This ruling is in respect of the Notice of Motion application dated 8th January, 2026 brought by the Appellant pursuant to the provisions of sections 1A, 1B, 3A, 3B and 99 of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 Rule 1 of the Civil Procedure Rules 2010. The application seeks orders that; 1. **The court be pleased to review the judgment dated 2nd December, 2025 and delivered on 27th November, 2025, having been issued irregularly.** 2. **That the court be pleased to correct the errors on the record and in the facts in the judgment dated 2nd December, 2026.** 3. **That the tenancy of the Appellant/Applicant be restored.** 4. **That the costs be in the cause.** The application was based on the grounds on the face of the Notice of Motion, namely. 1. That as captured by part of the Judgement delivered on 27th November, 2025 by Justice E. Asati in the Kisumu ELCLA/E074/2024, the Honourable stated as follows:- 2. *“……… The ruling shows that the court considered the reference and made findings on the same and final decision.* 3. *The Appellant has not demonstrated what aspect of the Reference remained undetermined, as there was a determination…”* 4. Vide the documentation filed by the Appellant/Applicant, the Due Procedures of Terminating a Tenancy were never followed. 5. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, 2022 provides the mandatory procedure for the Termination as hereunder: 6. The Landlord must issue a Termination Notice with a minimum period of two months; 7. The Notice must comply with the minimum two-month requirement; failure to do so violates the above-referenced Act. 8. If the Tenant opposes the Notice, they have one month from receipt to draft and submit a response, indicating whether they agree or disagree with the termination (this was done by the Tenant). 9. If the dispute remains unresolved, the Tenant has the right to file a Reference before the Tribunal to resolve the dispute regarding the termination (the Tribunal failed to comply with this section of the Law). 10. That, however, in the present dispute, the above-highlighted procedures were never followed. The nature of events was as follows: 11. The Landlord issued a 2-month Termination Notice dated 14/03/2024. 12. The Landlord proceeded to close the Tenant’s premises on 15/03/2025, effectively rendering the Termination Notice invalid and illegal. 13. The Tenant explicitly wrote to the Landlord within one month of receiving the Notice, indicating that he did not wish to comply with the Notice. 14. Subsequently, the Tenant also communicated to the Landlord his desire to have the business premises reopened, to sell some furniture as he had ready clients, and to clear the outstanding rent arrears. 15. The Tenant’s directives were not acted upon or complied with by the Landlord. 16. The Tenant then filed a reference before the Tribunal seeking to resolve the dispute regarding the validity of the Termination Notice. However, the matter was neither heard nor determined as required by law. 17. Throughout the Appeal, the Appellant/Applicant has tried to demonstrate that the following aspects of the Reference were not dealt with:- 18. The illegality of the Termination of the Tenancy Process – the Termination of Tenancy Notice did not adhere to the required two-month notice period, rendering the notice invalid and the subsequent termination of tenancy unlawful. 19. The Tribunal’s decision in favour of the Landlord was based on an invalid termination notice, constituting a substantial error in judgement. 20. The Tribunal failed to hear and determine the Reference properly, proceeding instead to issue a ruling based on illegalities that breach established procedural requirements. 21. That if the Reference was heard in its finality, the logical conclusion would be that: 22. The termination of the Tenant’s tenancy would be unlawful because the Landlord had closed the business premises a day after having issued the Termination Notice. 23. The Tenancy of the Tenant would have been reinstated; 24. The Tenant, who had clients ready to buy furniture, would have earned profits and settled the rental arrears; 25. All of this information was conveyed to the Landlord by the Tenant; the Landlord chose to ignore the same. 26. That yes, it is the duty of the Tenant to pay rent; however, the rights of the Tenant are also paramount. 27. That it is well established in the records that the business premises occupied by the Tenant had been closed. 28. That the Tenant, vide his letter/email dated 27th March, 2024, had indicated that the business premises had been locked illegally and that he wanted the business premises opened so that he could proceed to sell furniture and pay the rent arrears. 29. What advantage would it serve the Tenant to lock the business premises where he operated if he was engaged in a profit-making business? Furthermore, prior to initiating legal action, the Tenant had already communicated in writing to the Landlord regarding the closure of the premises. The Landlord only addressed this issue in their response after the case had been filed in court. 30. That the Tribunal erred significantly in failing to recognize that the issue of the business premises’ closure had been raised multiple times by the Tenant, yet the Tribunal chose to ignore this crucial fact. 31. That the Tenant had given the Landlord a way in which the rental arrears shall be settled; however, the Landlord refused and neglected to agree with the sentiments of the Tenant. 32. That the entire proceedings have been hinged on the non-payment of rent while disregarding the Rights of a Tenant as enshrined in our law. 33. By stating that no pending aspect of the Reference has not been canvassed, the judgment of this Court contradicts the laid down procedures of the Landlord and Tenant (Shop, Hotels and Catering, Establishments) Act, 2022. 34. That unless this Applicant is heard and determined urgently, this Applicant shall be rendered nugatory. 35. This Application is made in the interest of justice and fairness. The application was supported by the averments in the Supporting Affidavit sworn by Patrick Adolwa on 8th January, 2026 and the annexures thereto. The application was opposed vide the grounds of opposition dated 16th February, 2026 and the Replying Affidavit sworn by Sylvester Ochieng Owuondo on behalf of the Respondent on 16th February, 2026. The application was heard by way of written submissions. Written submissions dated 10th March, 2026 were filed by Magotsi Law Advocates, while written submissions dated 24th March, 2026 were filed on behalf of the Respondent by the firm of Otieno Ochich & Associates Advocates. I have considered the application and particularly the grounds thereof, the reply thereto and the submissions. The substantive relief sought is an order of review of the judgment delivered herein on 27th November, 2025. The law governing review of judgments in civil cases is section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 2010. Order 45 Rule 1 (1) Civil Procedure Rules provides that: - “Any person considering himself aggrieved- 1. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or 2. by a decree or order from which no appeal is hereby allowed; and from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” It is clear that the grounds upon which an application for review of a judgment/decree or order can be made are: - a) discovery of a new and important matter or evidence or b) some mistake or error apparent on the face of the record or c) any other sufficient reason and d) the application must be brought without unreasonable delay. None of the grounds have been cited or proved herein. Having read and considered the grounds of the application, it is my finding that the totality of the Appellant’s application invites the court to interrogate the merits and propriety of the judgment dated 27th November, 2025. This court has no jurisdiction to do so. Having rendered itself on the merits of the appeal vide its judgment, this court became *functus officio.* To challenge the judgment on its merits, the appellant/applicant can only go to a higher court; the Court of Appeal for redress. The application is therefore misconceived. The upshot is that 1. The application dated 8th January 2026 is hereby dismissed. 2. Costs are awarded to the Respondent. Orders accordingly. **Ruling, dated and signed at Kisumu, read this 18th day of June, 2026 virtually through Microsoft Teams Online Application.** **E. ASATI,** **JUDGE.** **In the presence of:** Atika: Court Assistant. No appearance for the Appellant/Applicant. Otieno Ochich for the Respondent.