https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12770

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CIVIL APPEAL NO. E032 OF 2026** **HUZEFA AMIRALI**.........................................................................**APPELLANT** **=VERSUS=** **BENEDICT SIMEON ONDIEK NYATANGI T/A** **BENOM ENTERPRISES HARDWARE**...............................................................................**RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/S Anassi Momanyi & Co. Advocates** **Njiru Kibaru & Co. Advocates** **RULING** 1. Before this Court is a Notice of Motion dated 18th day of March 2026, expressed to be brought under Section 1A, 1B, 3A, 63(c) and 80 of the Civil Procedure Act and Order 45 and 51 of the Civil Procedure Rules. The Respondent seeks the following orders: 2. *Spent.* 3. *The ruling issued on 9/3/2026 be reviewed and be set aside and or vacated.* 4. *Costs of the application be provided for.* 5. The application is grounded on the following grounds: - 1. *The Appellant approached this honourable Court vide a notice of motion dated 26th February, 2026 seeking orders that: -* 6. *That there be a stay of execution of the orders issued on 25th February, 2026 pending hearing and determination of this application.* 7. *That there be a stay of execution pending hearing and determination of the intended appeal.* 1. *The Respondent through his Advocate filed a notice of preliminary objection dated 3rd March, 2026 challenging the jurisdiction of this honourable Court to handle an appeal arising from a dispute over tenancy to business premises.* 2. *On 9th March, 2026 the honourable Court delivered a ruling captioned "being an appeal from the ruling of the Hon. Daniel S. Sifuna delivered on 25th February, 2026 in Eldoret MCCCMISC No. E271 of 2025".* 3. *That in the ruling, the honourable Court held that the impugned decision of the learned trial Magistrate dated 25th day of February, 2026 is null and void and it has got to be set aside by the application of the constitution and statute law on matters touching on want of jurisdiction. The costs of this application awarded to the Applicant to this application. It is so ordered.* 4. *There exists an error apparent on the face of the Court record.* 5. *That the issue that was before the honourable Court was whether this honourable Court has jurisdiction to handle the application dated 26th February, 2026 and the appeal or whether it is the Environment and Land Court that is clothed with jurisdiction.* 6. *The honourable Court is yet to determine whether it has the jurisdiction or whether it is the Environment and Land Court that is clothed with jurisdiction to handle the application dated 26th February, 2026 and the appeal.* 7. *That the honourable Court in its ruling delivered on 9th March, 2026 held that the learned trial Magistrate did not possess the legal capacity, power, or authority of a Court to adjudicate upon the particular subject matter in controversy.* 8. *The honourable Court in paragraph 15 of its ruling dated 9th March, 2026 held that for the Magistrate's Court to entertain an application and a motion dated 10th December, 2025 and 14th December, 2025, respectively, with regard to the execution and enforcement of the decree emanating from the Business Premises Rent Tribunal, was ultra vires the basic components of that Court's jurisdiction.* 9. *That Section 14 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act provides that a duly certified copy of a determination of a Tribunal may be filed in a competent subordinate Court of the first class by any party to the proceedings for the same to be enforced as a decree of the Court.* 10. *That the Appellant approached the Eldoret Chief Magistrates, Court vide Miscellaneous Civil Case No. E271 of 2025 for the adoption of the decision of the Business Premises Rent Tribunal in BPRT Case Noo.E044 of 2024.* 11. *The same decision was adopted as a decree of the Honourable Court on 11th November, 2025 thereby clothing the learned trial Court with jurisdiction.* 12. *That once the decision of the BPRT was adopted as a decree of the honourable Court in Eldoret Chief Magistrates, Court vide Miscellaneous Civil Case No. E271 of 2025, Order 22 of the Civil Procedure Rules provides for the procedure to be undertaken in execution of the decree of the honourable Court.* 13. *That Section 34 of the Civil Procedure Act provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree which in this case was the Eldoret Chief Magistrate Court.* 14. *That the ruling dated 9/3/2026 contains an error apparent on the face of the record, the learned trial Magistrate is clothed with jurisdiction.* 15. *This application has been brought in utmost good faith and timeously.* 16. *That there are sufficient reasons advanced to warrant a review of the ruling dated 9th March, 2026.* 17. *It is fair, just and in the interest of justice that this application be allowed.* 18. *The Court has powers to grant the orders sought herein in the best interest of justice.* 8. In response to the application is the Replying affidavit of one Huzefa Amiraliwho avers as follows: 9. *THAT I am the Appellant/Applicant herein and competent to swear this affidavit.* 10. *THAT I have read and understood the Respondent's response and I reply thereto as follows.* 11. *THAT the Respondent's position is misleading, legally untenable and intended to defeat the course of justice.* 12. *THAT the Honourable Court in its ruling delivered on 9th March 2026 correctly found that the trial Court lacked jurisdiction and properly set aside the ruling dated 25th February 2026.* 13. *THAT the prayers sought in the application have been overtaken by events as the Respondent has since been lawfully evicted from the suit premises.* 14. *THAT the Applicant has failed, refused and/or neglected to comply with the orders of the Business Premises Rent Tribunal (BPRT) which orders remain valid and binding.* 15. *THAT the said BPRT orders have never been appealed against, set aside, or varied, and therefore remain enforceable.* 16. *THAT the Applicant has approached this Honourable Court with unclean hands, having deliberately disregarded lawful orders while seeking equitable reliefs.* 17. *THAT the ruling delivered on 25th February 2026 purported to declare the attachment and/or seizure of the Respondent's goods illegal.* 18. *THAT the learned Court lacked jurisdiction to make such a finding, as it was effectively sitting on appeal over orders and processes arising from the BPRT without proper jurisdiction.* 19. *THAT jurisdiction over disputes relating to controlled tenancies lies with the Business Premises Rent Tribunal, and any challenge thereto must follow the prescribed appellate process.* 20. *THAT the Applicant is improperly attempting to introduce issues touching on the jurisdiction of the Environment and Land Court (ELC) at this stage, which issue was neither properly raised nor canvassed earlier.* 21. *THAT the question of jurisdiction cannot be raised in a piecemeal manner to defeat lawful proceedings and/or sanitize illegal actions.* 22. *THAT the issue before this Honourable Court is not merely execution but the legality of the proceedings leading to the impugned orders.* 23. *THAT the application does not meet the threshold for review under Order 45 of the Civil Procedure Rules, as there is no discovery of new and important evidence; there is no error apparent on the face of the record and the application is otherwise an attempt to re-litigate matters already determined.* 24. *THAT the Applicant is merely seeking to delay justice and frustrate the Respondent.* 25. *THAT the Respondent's assertion that the Applicant has come to Court with unclean hands is unfounded and is an attempt to divert attention from the jurisdictional defect.* 26. *THAT the introduction of the issue of the Environment and Land Court at this stage does not aid the Respondent's case, as it only reinforces the fact that the Magistrate's Court lacked jurisdiction to alter the judgement made by the tribunal.* 27. *THAT the application meets the threshold for review under Order 45 of the Civil Procedure Rules, particularly on the basis of an error apparent on the face of the record, namely want of jurisdiction.* 28. *THAT it is in the interest of justice that the application be dismissed with costs.* 29. This application is supported by the submission of learned counsel of the Respondent which I hereby acknowledged and from the subsequent analysis it would be demonstrated how it has been juxtapose in the decision making by this Court. **Decision** 1. Let us be very clear about the law, decisions and appeals from the Business Premises Rent Tribunal (BPRT) in Kenya lie exclusively to the Environment and Land Court and not the High Court of Kenya whose jurisdiction is duly constituted under Article 165(3): *(3) Subject to clause (5), the High Court shall have—* *(a)unlimited original jurisdiction in criminal and civil matters;* *(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;* *(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;* *(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—* *(i) the question whether any law is inconsistent with or in contravention of this Constitution;* *(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;* *(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and* *(iv) a question relating to conflict of laws under Article 191; and* *(e) any other jurisdiction, original or appellate, conferred on it by legislation.* 1. The direct and immediate answer to this application is that appeals from BPRT must be filed in the Environment and Land Court within 30 days from Tribunal orders. Decided case law in Kenya legal system explicitly affirms that the ELC in Kenya has sole appellate and judicial review jurisdiction over BPRT matters, rendering the High Court devoid of jurisdiction. Let us take the example of the following decided cases on this issue of BPRT and appeals jurisdiction: * ***Maru v Business Premises Rent Tribunal (BPRT) at Nairobi [2025] KEHC 18885****: The Court affirmed that Section 15(4) of Cap. 301 channels all appeals and related judicial review applications directly to the Environment and Land Court rather than the High Court.* * ***Wakimiri v The Business Premises Rent Tribunal & 2 others [2022] KEELC 2667****: Confirmed the 30-day statutory window for lodging appeals from the tribunal to the ELC under Section 15* * ***Republic v Chairman Business Premises Rent Tribunal & 2 others Ex-Parte Abdulkadir Hubess [2017] eKLR****: Highlighted the statutory mandate where determinations or orders made by the tribunal are subjected to appellate review before the ELC.* * ***Njiru v Njiru [2025] KEHC 6614****: Reaffirmed that enforcement mechanisms and appeals concerning controlled tenancies from the tribunal belong in the Environment and Land Court.* 1. The historical litigation of this matter is traceable to the Chairman of BPRT, thereafter it found it second landing before the Senior Resident Magistrate at Eldoret Law Courts Hon. Sifuma. There is no Magistrate in Kenya who is allowed by law to alter substantially the decision arrived at by the BPRT in which the session being challenged was presided over by a duly gazetted Chairman of the Tribunal. The impugned decision from the Learned Senior Resident Magistrate made substantive review by the following declarations: 1. *The Preliminary Objection dated 10th December 2025 is dismissed with costs.* 2. *The Notice of Motion dated 4th December 2025 is allowed.* 3. *The attachment and seizure of the Respondent's goods on 2nd December, 2025 is hereby declared illegal, null and void ab initio.* 4. *The Applicant (Huzefa Amirali) and Seventy-Seven Auctioneers are hereby ordered to restore and return all seized goods to the Respondent's business premises (Benom Enterprises Hardware) within forty-eight (48) hours of this ruling.* 5. *In default of restoration, the Respondent is at liberty to move this Court for committal proceedings against the Decree Holder and the Auctioneers for contempt.* 6. *The costs of this application are awarded to the Respondent.* 2. Lest we forget jurisdiction of a Court or Tribunal is the livewire and bloodline of any adjudicatory processes. Therefore, jurisdiction is the vital authority that gives a Court or government body the legal power to hear a case and make a decision, without it any legal action is dead and void, just like a body without blood. This is what the Court had in mind in the following decided cases: * *First, Owners of the Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd [1989] eKLR: The definitive locus classicus establishing that jurisdiction is everything and dictates whether a Court can entertain a suit.* * *Second, Samuel Kamau Macharia & Another v. Kenya Commercial Bank Ltd. & 2 Others [2012] KESC: The Supreme Court affirmed that a Court's jurisdiction flows from the Constitution or legislation and cannot be expanded or invented through judicial innovation.* * *Third, Jamal Salim v. Yusuf Abdulahi Abdi & Another: Reiterated that the consent of parties cannot confer jurisdiction on a Court if the law explicitly bars it or fails to provide for it.* 1. The million-dollar question which must be answered by this Court is whether indeed the ruling of this Court issued on 9th March 2026 is reviewable and set aside as prayed for by the Applicant. The answer is expressly provided for under Section 80 of the CPA and Order 45 Rule 1 of the CPR. Review jurisdiction in Kenyan Courts is primarily governed by Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, allowing a Court to review its own judgment or ruling upon discovery of new evidence, a mistake on the face of the record, or any other sufficient reason. 2. What is the legal basis and scope of review in our legal system: * ***Statutory Authority:****Section 80 of the Civil Procedure Act sets the substantive right for a person aggrieved by a decree or order to seek a review.* * ***Procedural Rules:****Order 45 outlines the strict conditions required, such as the discovery of important and new matter/evidence or a manifest error apparent on the surface of the record.* * ***Distinct from Appeal:****Courts consistently affirm that a review application cannot be used as a disguised appeal or an invitation to the Court to substitute its own balanced view for a prior judicial decision* 1. What is the Applicant asking this Court to do? To review the entire ruling based on the following key principles and by brief explanation herein in my view unfortunate so the threshold has not been met save for condition in clause (c): * ***Error on the Face of the Record:****The error must be self-evident and not require a long-drawn-out argument or re-interpretation of evidence.* * ***Discovery of New Evidence:****The Applicant must show that the evidence was not within their knowledge or could not be produced despite due diligence when the ruling or judgment was delivered.* * ***Court of Appeal and Supreme Court Limitation:****Review under Section 80 of the Civil Procedure Act applies strictly to the Court that passed the original decree or order (subordinate Courts and the High Court/ELC/ELC equivalents), and higher appellate Courts face distinct jurisdictional bounds regarding self-review.* * ***Sufficient reason:*** *A wide expression that includes a clear misconception of fact or law by the Court or a grave miscarriage of justice.* 1. This application is based on a ruling of a coordinate jurisdiction with the Chairman of BPRT. By the letter and spirit of the impugned ruling of the learned trial Magistrate it indeed change the character of the decision by BPRT on matters which could be substantively convened and argued before the ELC Court. The Learned Trial Magistrate did not have the jurisdiction to entertain an appropriate preliminary objection and the subsequent rendering the execution of the judgment from the BPRT without legal validity. The Magistrate’s Court is a conveyor belt in so far as the execution and enforcement of the decree arising out of the decision made by the Chairman or Member of BPRT. In the case of *Ajit Kumar v State of Orissa (1999) 9 SCC 596* it was observed: *"The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. An error which has to be established by a long- drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self- evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.”* 1. This application failed the test which is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Section 80 of the CPA and order 45 Rule 1 of the CPR. I also acknowledge that every Court of law duly constituted under Section 50 (1) of the Constitution is not precluded from exercising the power of review which flows from the inherent jurisdiction in every Court to prevent miscarriage of justice or to correct grave and palpable errors committed by it. However, one definitive limitation is clearly outlined on the exercise of power of review as expressly stated under Order 45 Rule 1 of the CPR. Those grounds are not *carte blanche* for a Court to exercise its judicial discretion to review an already decided case on the merits. I am of the considered view and I hold strongly so that a review petition or application is not permissible for an erroneous decision to be reheard and corrected. If a Court of law makes an entry to that review jurisdiction which has a limit purpose it would have acted in access of jurisdiction. It would be apposite to state and observed at the same time that the power of review being a creature of the statute as provided for in our Civil Procedure Act and Rules precisely Section 80 and Order 45 Rule 1 no Court or Tribunal or quasi judicial body or administrative organ is permitted to review its judgment or ruling or decision made with finality unless it is legally empowered to do so. That is the very reason why review under our Civil Procedure Act and Rules only relies on any of the grounds specified in the law. 2. In the instant case am being asked to review the entire ruling of the Court given with reasons not to correct a mistake or error apparent on the face of the record but to substitute a view, if I do so it would be in violation of the proper interpretation of the statute governing review jurisdiction. The ruling sought to be reviewed is backed by reasoning and cannot be altered without entering into a thought process to alter paragraph by paragraph, legal analogy so that I can be on the same fulcrum with the Applicant to completely throw the impugned ruling to the legal dustbin. Can one vacate the 11-page ruling without re-appreciating the evidence before exercising certiorari jurisdiction? The answer is in the negative. 3. For those reasons the application dated 18th March 2026, lacks merit under Section 80 of the CPA as read with Order 45 Rule of the CPR and the orders so issued by the Court in the ruling dated 6th day of March 2026 cannot be set aside in exercise of the review jurisdiction. In the facts and circumstances of the case there shall be no orders as to costs. 4. Orders accordingly. **DATED, SIGNED AND DELIVERED AT ELDORET VIA CTS THIS 7TH DAY OF AUGUST 2026.** **………………………………….** **R. NYAKUNDI** **JUDGE**