https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5336

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC APPEAL NO. E012 OF 2026** **MOYALE MALL LIMITED 1ST APPELLANT/APPLICANT** **DURAN HUSSEIN MUDORE 2ND APPELLANT/APPLICANT** **HASSAN EGA MUSA 3RD APPELLANT/APPLICANT** **-VERSUS-** **ABDIRISAK ABSHIR ALI 1ST RESPONDENT** **MOHAMED AHMED ALI 2ND RESPONDENT** **SAID MOHAMED OMAR 3RD RESPONDENT** **RAHMO HASSAN ISAK 4TH RESPONDENT** **ABDIKADIR HASSAN ABDULLAHI 5TH RESPONDENT** **ABDIRAHMAN MOHAMED DAQAUE 6TH RESPONDENT** **FARHAN ABDI HUSSEIN 7TH RESPONDENT** **DAHABO ADOW 8TH RESPONDENT** **FADUMO MOALIN ALIOW 9TH RESPONDENT** **MOHAMED MOGOLO BARE 10TH RESPONDENT** **FADAMO ABDILLE SABRIYE 11TH RESPONDENT** **AMINO SALAH AHMED 12TH RESPONDENT** **ABDIWALI OSMAN ELMI 13TH RESPONDENT** **SAHRO HAJI OSMAN 14TH RESPONDENT** **JAMAC MOHAMED MOALIN 15TH RESPONDENT** **MOHAMED AHMED OSMAN 16TH RESPONDENT** **ABDULLAHI MOHAMED JAMAC 17TH RESPONDENT** **NUR NIMO MOHAMED 18TH RESPONDENT** **ABDULLA HASSAN ABDI 19TH RESPONDENT** **RULING** 1. What is before me for determination is the appellants’/applicants’ Notice of Motion dated 14th July 2026, expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act, Article 159 of the Constitution and all other enabling provisions of the law. It is supported by the affidavit of DURAN HUSSEIN MUDORE, the 2nd appellant and a director of the 1st appellant, sworn on 14th July 2026, and by his further affidavit sworn on 26th July 2026; and it is opposed by Grounds of Opposition dated 22nd July 2026 taken out under Order 51 Rule 14 of the Civil Procedure Rules, 2010. The Motion was filed barely a fortnight after this Court had delivered final judgment in the appeal, and it invites the Court to say what that Judgment means, and what it leaves to be worked out, in the period before the question it remitted has been answered. 2. The application has been canvassed by way of written submissions the respondents filed Written Submissions dated 6th August 2026, the applicants replied by Written Submissions in Rebuttal dated 10th August 2026, and the respondents answered by Further Submissions dated 13th August 2026, expressed to be confined to the new matters and authorities raised in the rebuttal. I have read and considered the Notice of Motion, the supporting and further affidavits together with their annexures, the Grounds of Opposition, all three sets of submissions and the authorities cited in each, and the Judgment of 30th June 2026, which I have re-read in its entirety for purposes of this ruling. **The Applicants’ case** 1. The substantive prayers sought in the application fall, on analysis, into three distinct groups, and it is convenient to describe them in that way rather than seriatim, because the group to which a prayer belongs determines the jurisdictional question it raises. The first group is corrective. By prayer 3 the applicants ask the Court to recall and clarify the Judgment so as accurately to reflect the parties to the appeal following the order of 30th April 2026 striking out the 3rd, 5th, 9th and 17th Respondents; and by prayer 4 they ask the Court to clarify the Judgment so as to reflect that the record comprised fourteen (14) leases and not nineteen (19) as stated in the Judgment, so that the remitted proceedings before the Tribunal are undertaken only in respect of the leases properly forming the subject matter of the appeal. 2. The second group is regulatory. By prayer 5 the applicants ask the Court to issue such consequential and transitional directions as are necessary to clarify the legal basis and consequences of the respondents’ continued occupation of the suit premises during the intervening period, and to define, regulate and safeguard the applicants’ proprietary, possessory and reversionary rights, including their entitlement to the payment, receipt and recovery of rent and/or mesne profits, pending the Tribunal’s determination. By prayers 6 and 8 they ask the Court to invoke its residual jurisdiction and to issue such further and/or consequential orders as may be necessary to ensure the full, effective and practical implementation of the Judgment. By prayer 2 they seek, pending the hearing and determination of the application, an order restraining the respondents from subletting, conducting structural changes and/or receiving any goodwill from third parties not party to the initial lease agreements. The third group consists of a single prayer: by prayer 7 the applicants ask that the matter remitted to the Tribunal be heard by a member of the Tribunal other than Hon. Patricia May, whose orders were the subject of the appeal. 3. The grounds on the face of the Motion and the deposition in support may be shortly stated. The applicants say that while the Court set aside the interim injunctive orders which had restrained them from implementing their decision rejecting renewal of the leases, it did not issue consequential or transitional directions regulating the legal position of the parties pending the Tribunal’s determination. The setting aside, it is said, restored the applicants’ proprietary rights but left unresolved the manner in which those rights may lawfully be exercised in the interim: if they proceed to recover possession and the Tribunal thereafter finds the tenancies to be controlled, they face the risk that their actions will be impugned as premature; while if they hold their hand, the respondents remain in occupation notwithstanding that the restraining orders have been set aside. They further depose that the respondents have continued to sublet and part with possession, receive goodwill, undertake structural alterations and change the user of the premises, to the prejudice of the applicants’ reversionary interests, and that a legal vacuum has thereby arisen which is likely to generate further disputes and a multiplicity of proceedings. They are careful to state, at paragraphs 14, 26 and 29 of the supporting affidavit, that they do not seek to reopen, challenge or vary the merits of the Judgment, and that what is sought is intended only to render the Judgment complete, self-executing and capable of practical implementation. In support of the Court’s power to do so they invoke its residual jurisdiction, relying upon **Mawji v Arusha General Store [1970] EA 137**, **Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR** and the test articulated in **Kamau James Gitutho & 3 Others v Multiple ICD (K) Limited & Another (Civil Application 2 of 2019) [2019] eKLR**, and drawing attention to the fact that no further appeal lies from this Judgment by virtue of section 15(4) of Cap. 301. 4. By his further affidavit sworn on 26th July 2026 the 2nd applicant joined issue with the Grounds of Opposition and annexed, as exhibit “DHM1”, a copy of the Ruling and Orders of the Business Premises Rent Tribunal (Hon. Patricia May, Member) dated 10th June 2026 in BPRT Case No. E227 of 2026, the effect of which I have summarised above. He deposes that although dated 10th June 2026, the Ruling and Orders were uploaded onto the Judiciary Case Tracking System after the present application had been filed, and came to the applicants’ attention only thereafter. 5. The applicants deploy that Ruling for three purposes. They say it demonstrates that the learned Member expressly acknowledged that the question of the Tribunal’s jurisdiction was pending determination before this Court and yet proceeded to assume jurisdiction and issue substantive interlocutory orders regulating the payment of rent and the parties’ rights and obligations. They say it confirms the very vacuum of which they complain, since the Tribunal itself found it necessary to regulate the parties’ position, and that the need for such regulation subsists after the Judgment. And they say that, absent the consequential directions sought, they would be left with no alternative but to appeal against the Ruling of 10th June 2026 upon the same jurisdictional issue which this Court has already conclusively determined, occasioning a multiplicity of proceedings, delay and additional expense. They further rely upon it, at paragraph 11 of the further affidavit, as showing that the learned Member has now on two separate occasions expressed concluded views on the very issue remitted for determination. **The Respondents’ case** 1. The respondents oppose the application upon eleven Grounds of Opposition dated 22nd July 2026, taken out under Order 51 Rule 14 of the Civil Procedure Rules, 2010. Reduced to its substance, their case may be grouped under five heads. First, and centrally, that this Court, having rendered final judgment and remitted the matter, discharged its appellate mandate and is functus officio. Secondly, that the application is in truth an application for review masquerading as a request for clarification, none of the statutory preconditions for review having been pleaded or proved. Thirdly, that save for prayers 3 and 4 the application is an abuse of the process of the Court, calculated to resurrect before a forum which has discharged itself the very injunctive and occupational reliefs the Court declined, so as to harass the respondents and to delay the resumed hearing before the Tribunal. Fourthly, that prayer 7 is scandalous, frivolous, vexatious and an unconstitutional attempt to forum-shop which offends Article 160(1) of the Constitution. Fifthly, that the plea for transitional directions is superfluous and misdirected, because an active and legally binding framework already governs rental receipts by virtue of the Tribunal’s Ruling and Orders of 10th June 2026, and the assertion that the respondents occupy the suit premises without paying rent is, they say, factually false and conceals those subsisting orders. 2. They concede prayers 3 and 4, which they accept seek to rectify purely formal administrative records so as to reflect the order of 30th April 2026 and to correct the count of leases from nineteen to fourteen, and they ask that any order be limited strictly to that correction, that the balance of the application be dismissed with costs under section 27 of the Civil Procedure Act, and that the remitted file be transmitted immediately to the Tribunal for priority hearing on evidence. **The Applicants’ Submissions** 1. The applicants filed Written Submissions in Rebuttal dated 10th August 2026 in answer to the objections taken in the Grounds of Opposition and amplified in the respondents’ Written Submissions dated 6th August 2026, to which I come in the next section. Those submissions frame five issues. They do not seek to re-argue the application at large; they are directed at the objections taken by the respondents. First, on functus officio, the applicants accept the principle of finality “except in special cases.” The circumstances now confronting the parties, they say, arose from the appellate determination itself and could not, in their present form, have been raised before the Judgment was delivered. The Motion is brought in the same proceedings and before the same Court, and the mischief at which Pop-In is directed piecemeal litigation and the resurrection in a fresh suit of matters properly belonging to an earlier one is therefore absent. 2. Secondly, and more substantially, the applicants advance an affirmative formulation of the doctrine drawn from **In re Estate of the Late Joab Odero Odero (Deceased) (Succession Cause 227 of 1993) [2025] KEHC 6404 (KLR)** and **Kenya Broadcasting Corporation v Geoffrey Wakio [2019] eKLR**. From the former they take the proposition that the doctrine does not prevent a court from taking further proceedings towards facilitating or supplementing its own processes, so long as those proceedings are not merit based, and that proceedings are fully concluded only when the judgment or order has been perfected. From the latter they take the proposition that the doctrine does not foreclose proceedings which are incidental to, or the natural consequence of, the final decision, and that in determining whether a court is functus one looks to the order or relief which is being sought. Upon that footing they examine each prayer in turn and submit that prayer 2 is interlocutory and preservatory; that prayers 3 and 4 are corrective; that prayer 5 is consequential, transitional and directed at implementation; that prayer 7 concerns only the manner in which the remitted proceedings are to be conducted; and that prayer 9 concerns costs none of them, they say, requiring the Court to revisit, re-evaluate or determine afresh anything the Judgment decided. Thirdly, on residual jurisdiction, they submit that the test is “two-fold”: it assists the Court first in determining whether the exceptional jurisdiction is attracted, and then whether it ought to be exercised; and the fact that the Court of Appeal declined, on the facts before it, to exercise the jurisdiction does not convert the considerations it articulated into a rule that the jurisdiction may only be refused. They further submit that the absence of a further appeal by reason of section 15(4) of Cap. 301 is one of the circumstances in which the jurisdiction may be exercised, and is accordingly a factor favouring rather than barring its exercise. Their complaint, they emphasise, is not of uncertainty simpliciter but of asymmetry: that following the setting aside of the interim orders the parties have not been left in positions of equal uncertainty, one party continuing to enjoy occupation and the incidents flowing from it while the other bears the corresponding prejudice for an indeterminate period. 3. Fourthly, on review and abuse of process, they say that they have not moved this Court under Order 45 of the Civil Procedure Rules, that the grounds governing review are therefore not the measure of this application, and that the Court must determine the Motion according to the nature and substance of the reliefs actually sought rather than according to a characterisation placed upon them by an opponent. On abuse, they address **Sarak v Kotoye (1992) 9 NWLR (Pt. 264) 156**, a decision of the Supreme Court of Nigeria, and submit that none of the circumstances there identified as instances of abuse is present: there is no multiplicity of actions between the same parties on the same subject matter, no parallel proceeding in another forum, no duplication of similar processes in respect of the same right, and there is a legal basis for the process invoked. Fifthly, they raise a new issue, not taken in their principal submissions, which they frame as whether the Tribunal could properly exercise its statutory powers pending determination of its jurisdiction. Relying upon **Republic v Business Premises Rent Tribunal & Another Ex parte Albert Kigera Karume [2015] KEHC 6921 (KLR)** and, through it, upon **Re Hebtulla Properties Ltd. [1979] KLR 96**, they submit that the Tribunal is a creature of statute whose powers under section 12 of Cap. 301 are exercisable only in relation to controlled tenancies; that at the date of the orders of 10th June 2026 the question whether these tenancies were controlled was pending before this Court and the leases had in any event expired by effluxion of time; and that in directing the deposit of rent and restraining the applicants from treating the respondents as being in default, the Tribunal gave effect to an assumed legal relationship and inverted the proper order of jurisdictional inquiry. **The Respondents’ submissions** 1. In their submissions dated 6th August 2026, six issues are framed for determination. They also develop the five heads of opposition as follows. First, and centrally, they contend that jurisdiction is everything and that a court without it must down its tools, invoking the familiar admonition in **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**, and they rely upon **Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR)** and upon **Pop-In (Kenya) Ltd & 3 Others v Habib Bank AG Zurich [1990] KECA 62 (KLR)** for the proposition that there must be an end to litigation and that a party may not reopen a concluded subject of litigation. 2. Secondly, they submit that the application is in truth a review masquerading as a request for clarification, and that none of the statutory preconditions in section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason has been pleaded or proved. They rely upon **National Bank of Kenya Ltd v Njau (Civil Appeal 211 of 1996) [1997] KECA 71 (KLR)** for the settled propositions that an error justifying review must be self-evident and not require elaborate argument, that a wrong conclusion of law is a ground of appeal and not of review, and that an issue hotly contested cannot be reviewed by the very court that adjudicated upon it. Thirdly, they contend that, save for prayers 3 and 4, the application is an abuse of the process of the Court and liable to be struck out, relying upon **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others, Civil Appeal No. 25 of 2002 [2009] eKLR** and **Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR)**. The applicants, they say, seek to resurrect before a forum that has discharged itself the very injunctive and occupational reliefs the Court declined, in order to harass the respondents and delay the resumed hearing before the Tribunal. 3. Fourthly, they contend that prayer 7 is scandalous, frivolous, vexatious and an unconstitutional attempt to forum-shop which offends Article 160(1) of the Constitution. Relying on **Rai & 3 Others v Rai & 4 Others (Petition 4 of 2012) [2013] KESC 20 (KLR)**, and through it on **Metropolitan Properties Co. (FGC) Ltd v Lannon [1969] 1 QB 577** and **Porter v Magill [2002] 2 AC 357**, they submit that bias must be established on objective facts as perceived by a fair-minded observer, and that the applicants’ grievance stems solely from adverse interlocutory rulings, which do not equate to judicial bias. Fifthly, on the question of transitional directions, they contend that the plea is superfluous and misdirected because an active, legally binding framework already governs rental receipts: by a Ruling and resultant Orders issued on 10th June 2026 in BPRT Case No. E227 of 2026 the Tribunal permitted the tenants to deposit their monthly rent directly into its official bank account, deemed such deposit to constitute full and lawful performance of their rental obligations, and restrained the landlords from alleging rent arrears, issuing default notices, levying distress or executing evictions for periods covered by the deposits. The assertion that the respondents occupy without paying rent is, they say, factually false and deliberately conceals those subsisting orders. 4. The respondents answered the applicants’ rebuttal by Further Submissions dated 13th August 2026, confined to the matters there raised. On Pop-In, they say that the “special cases” there contemplated are matters which could not, with reasonable diligence, have been raised in the proceedings already concluded, and not matters which a party wishes it could now raise because it is dissatisfied with the practical consequences of a judgment properly obtained. On **Kenya Broadcasting Corporation v Geoffrey Wakio** (Supra) they say the authority is self-defeating in the applicants’ hands: what the Court of Appeal there held was that a further order made after the court had already dispensed with the merits and made its orders was null and void, and that, they submit, is the precise vice here, prayers 2, 5, 6 and 8 inviting fresh findings on subletting, structural alteration, the collection of goodwill and the quantum of rent or mesne profits, none of which was adjudicated by the Judgment. On **In re Estate of the Late Joab Odero Odero** (Supra) they say the case is readily distinguishable: the application there sought to give effect to an order which had already, in clear and unqualified terms, directed the respondent to vacate the suit property and which he had refused to obey, the court being asked only to realise a decretal term. No equivalent decretal term, they say, exists here, the Judgment containing no operative term regulating subletting, structural works, goodwill or rent, for the simple reason that no such term was ever sought or argued at the hearing of the appeal. They do not dispute that the three considerations operate together, nor that satisfaction of all three may in an appropriate case justify the exercise of the jurisdiction; their point is narrower, namely that on the facts of this application the first and second limbs are not met, so that the third cannot on its own carry the applicants across the threshold. On review, they say they never contended that the Motion formally invokes Order 45; their submission was, and remains, that it is a review masquerading as something else, its substance rather than its form bringing it within the mischief which Order 45 and section 80 of the Civil Procedure Act exist to control. On abuse of process, they observe that Sarak v Kotoye (Supra) was not an authority relied upon by them at all, and that their case rested upon **Muchanga Investments Ltd** (Supra) and **Energy Regulatory Commission v John Sigura Otido** (Supra) neither of which is addressed anywhere in the rebuttal, so that their submission on abuse stands, as they put it, unanswered. 5. On asymmetry, they say that the parties’ relationship pending the Tribunal’s determination is not left ungoverned: it is regulated by the Tribunal’s own Ruling of 10th June 2026, which requires the respondents to deposit rent with the Tribunal and correspondingly restrains the applicants from treating them as being in default; the complaint is in substance dissatisfaction with the terms of that framework, properly agitated before the Tribunal or, if appropriate, by way of judicial review of its Ruling. On the assertion that the Ruling was uploaded onto the Case Tracking System long after 10th June 2026, they say that, taken at its highest, it establishes no more than a delay in the administrative upload of a ruling, which is commonplace and unremarkable and says nothing about the date on which the Ruling was in fact delivered or the reasoning it recorded; and that if what is intended is a suggestion that the Ruling was antedated or otherwise irregularly issued, that is a serious allegation which has not been particularised, is unsupported by any affidavit evidence, and cannot be inferred from an upload timestamp. They add that a member who, faced with a landlord’s refusal to accept rent, directs that it be deposited into the Tribunal’s custodial account protects the landlord’s entitlement to receive rent while protecting the tenants from unlawful eviction, and is acting in a manner even-handed on its face, so that a fair-minded and informed observer would be less, not more, likely to apprehend bias; and that if another member is desired, the requisite application for recusal ought to be made to the Tribunal rather than similar orders sought from a superior court to bind it. Finally, on the applicants’ new fifth issue, it is submitted that the Tribunal, as a subordinate court within Article 169(1)(d) of the Constitution, has power under section 63(c) of the Civil Procedure Act to grant temporary injunctions; that it is commonplace, and unobjectionable, for a court or tribunal whose jurisdiction is under challenge to make interim, protective directions preserving the status quo pending resolution of that challenge without thereby assuming or prejudging the jurisdictional question; and that the orders of 10th June 2026 did no more than establish a custodial arrangement for rent pending the very determination which the Judgment afterwards remitted. They pray that prayers 1, 2, 5, 6, 7, 8 and 9 be dismissed with costs, and that any order arising from the application be limited strictly to the administrative rectifications conceded under prayers 3 and 4. **Analysis and Determination** 1. Having considered the pleadings, the submissions and the authorities, the following eight issues arise for determination: ***(i) What jurisdiction, if any, this Court retains over the Judgment delivered on 30th June 2026, and what is the scope of that jurisdiction, having regard in particular to the residual jurisdiction invoked and to section 15(4) of Cap. 301;*** ***(ii) Whether the corrective relief sought by prayers 3 and 4 ought to be granted;*** ***(iii) Whether, and to what extent, this Court may make the consequential and transitional directions sought by prayers 2, 5, 6 and 8;*** ***(iv) What effect, if any, the Ruling and Orders of the Tribunal dated 10th June 2026 have upon the disposal of this application;*** ***(v) Whether it is open to this Court, upon this application, to pronounce upon the competence of the Tribunal to make the interim directions it made on 10th June 2026 while the question of its jurisdiction was pending before this Court;*** ***(vi) Whether prayer 7, that the remitted matter be heard by a member of the Tribunal other than Hon. Patricia May, ought to be granted;*** ***(vii) Whether the application, save for prayers 3 and 4, constitutes an abuse of the process of the Court; and*** ***(viii) Who should bear the costs of the application.*** **The jurisdiction of the Court after judgment** 1. When a court has heard and finally determined the matter before it and has delivered judgment, its seisin of that matter comes to an end. It becomes functus officio, having discharged the office committed to it, and it thereafter has no general power to alter, add to, supplement or reconsider what it has decided. The rule is not a technicality. It is an incident of the finality of judicial decisions, without which litigation would have no terminus and no judgment would be safe to act upon. The principle is well settled. In **Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) (Civil Appeal 60 of 2013) [2014] KECA 600 (KLR)** the Court of Appeal, adopting the analysis in **Chandler v Alberta Association of Architects [1989] 2 S.C.R. 848** and the passage from **Jersey Evening Post Ltd v Al Thani [2002] JLR 542** cited by the Supreme Court in **Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR**, explained that a court is functus when it has performed all its duties in a particular case; that the doctrine bars a merit-based decisional re-engagement with a case once final judgment has been entered; and that where what is sought goes beyond the recognised exceptions, the court is wrong to entertain it. The Court there identified the exceptions as a slip in drawing up the judgment and an error in expressing the manifest intention of the court, and observed that the grounds on which the application before it was premised betrayed the serious adjudicative exercise the court was being called upon to perform. Those observations have a distinctly familiar ring in the present application. 2. The applicants do not dispute that principle. What they say, drawing upon **Kenya Broadcasting Corporation v Geoffrey Wakio [2019] eKLR** and **In re Estate of the Late Joab Odero Odero (Deceased) [2025] KEHC 6404 (KLR)**, is that the doctrine is not to be understood as barring every engagement by a court with a case it has decided; that what it bars is a merit-based decisional re-engagement; and that in deciding upon which side of that line an application falls, one looks not to the bare fact that judgment has been delivered but to the order or relief which is sought. That submission is, in my judgment, correct, and I accept it. The two authorities are of one voice with Telkom upon the point, and indeed both derive it from Telkom. 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 test is one of substance, and it is by the substance of what is sought that this application falls to be measured. Where the applicants and I part company is not upon the test but upon its application to their prayers. Against that background I turn to the avenues by which a court may lawfully engage with its own concluded judgment. 3. The first is the slip rule. Section 99 of the Civil Procedure Act provides that clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties. The jurisdiction so conferred is corrective, not creative. Its office is to make the judgment as drawn accurately express what the court actually decided and intended at the time of delivery to make the record speak the truth. It does not permit the court, under the guise of correction, to have second thoughts, to grant relief that was never sought or considered, to adjudicate fresh controversies, or to add to its judgment substantive orders which it did not, and on the material before it could not, have made. The second is the limited power of a court to clarify or interpret its own judgment where a genuine ambiguity or obscurity in its language threatens to frustrate implementation. That power is equally narrow. A clarification explains what the judgment means and how it operates; it does not alter what the judgment does. 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. 4. The third is the power to take further proceedings which are incidental to, or the natural consequence of, the final decision proceedings directed at facilitating or supplementing the court’s own processes so that what it has decided is realised. The essential feature of that jurisdiction, and equally its essential limitation, is that there must be something in the judgment to be realised. The court gives effect to what it decided; it does not decide something further. It is necessary to say something further about that avenue, because it is the one upon which this application ultimately turns, and because the argument before me treated it as though it were confined to the enforcement of an order cast in mandatory form. It is not so confined. A decretal term may be realised as much where a judgment has taken something away as where it has commanded something to be done. 5. The fourth is review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The present application is not brought as a review, none of the grounds for review is invoked, and no attempt was made to bring the application within Order 45. The respondents are right to say so, and right also in their reliance on **National Bank of Kenya Ltd v Njau (Civil Appeal 211 of 1996) [1997] KECA 71 (KLR)**, where the Court of Appeal held that the error or omission justifying review must be self-evident and must not require an elaborate argument to be established, that misconstruing a statute or reaching a wrong conclusion of law furnishes a ground of appeal and not of review, and that an issue hotly contested cannot be reviewed by the same court which adjudicated upon it. An applicant may not achieve by an omnibus motion what the law requires to be sought by a properly constituted application for review. That brings me to the fifth avenue, upon which the applicants principally rely and which requires fuller treatment: the residual jurisdiction of the Court. In **Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR** the Court of Appeal recognised that a court which is, in the matter before it, the court of last resort retains a residual jurisdiction to reopen a concluded decision, to be exercised sparingly and in exceptional circumstances, in order to correct an injustice which would otherwise be beyond remedy. 6. The applicants are correct that the third requirement is satisfied here. Section 15(4) of Cap. 301 provides that a decision of this Court on an appeal from the Tribunal is final, and no further appeal lies from the Judgment of 30th June 2026. This Court is, in relation to this dispute, the court of last resort. I accept that this is a matter of real weight, and I do not dismiss the invocation of residual jurisdiction as misconceived in principle; the doctrine of functus officio does not operate with equal severity where a disappointed litigant has nowhere else to go. Whether the jurisdiction so described is attracted upon the facts of this application is a question I need not finally decide, because for the reasons given below the substance of what the applicants require is available to them under the third avenue and not the fifth. I record my view upon it nonetheless, both because it was fully argued and because the boundary between the two marks the boundary of what I may properly do. Had it been necessary to decide, I would not have exercised it. First, the residual jurisdiction recognised in Benjoh is a jurisdiction to reopen and reconsider a decision said to have miscarried. Its entire premise is that the decision has worked an injustice which no appeal can cure. The applicants disclaim that premise in terms: at paragraph 14 of the supporting affidavit they depose that they fully respect the Judgment of this Court and do not seek to challenge any of its findings; at paragraph 26, that the directions sought do not invite the Court to revisit the merits of its judgment; and at paragraph 29, that the issuance of the directions will neither reopen nor vary its merits. Those disclaimers do the applicants credit as a matter of candour, and they are in my view decisive not against the application, but against this particular route to it. 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. Benjoh furnishes a narrow escape from an incorrect judgment. It has nothing to say about a correct judgment which has not yet been fully worked out; and it is the latter, and not the former, which the applicants in truth describe. 7. Secondly, and consistently with that, the first two limbs of the Gitutho test are not made out. There is no injustice or miscarriage of justice arising from the Judgment. The Court held that the Tribunal lacked jurisdiction to grant the interim relief it had granted, set that relief aside, and remitted the jurisdictional question for determination on evidence substantially the relief the applicants themselves sought on appeal. Their grievance is not that the Judgment was wrong but that it has so far yielded them nothing; and a grievance of that character is answered, if it is answered at all, by giving the Judgment effect and not by reopening it. Nor, correspondingly, is there any erosion of public confidence in the administration of justice. 8. Thirdly, the residual jurisdiction, when exercised, operates upon what the court decided. It does not enlarge the subject matter of the proceedings. 9. Fourthly, as to **Mawji v Arusha General Store [1970] EA 137** and section 3A of the Civil Procedure Act, the applicants stand on firmer ground than the respondents allow, provided the limits are observed. Inherent power supplements existing jurisdiction; it does not manufacture jurisdiction where none exists, and it cannot be used to confer substantive relief never sought in the proceedings. But where a court is engaged upon the working-out of its own order, section 3A is the ordinary source of the power to make such orders as may be necessary for the ends of justice, and the prevention of a judgment being rendered nugatory falls squarely within it. As to section 15(4) of Cap. 301, its finality cuts in both directions. The provision exists to give conclusive effect to decisions of this Court on appeals of this kind, so that disputes are not perpetuated through successive applications; but a decision to which the legislature has given conclusive effect is a decision which ought, so far as the Court’s own powers permit, to be made to work. 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. It is against that framework that each group of prayers must be tested. As will appear, this application is an amalgam: part of it falls squarely within section 99 and the Court’s clarificatory power; part of it falls within the Court’s power to give effect to what it has decided; and part of it falls just as squarely outside every avenue I have described. **Prayers 3 and 4: Correction of the Record** 1. I take the corrective prayers first, as they are the least controversial. The respondents, at ground 10 and at paragraph 30 of their submissions of 6th August 2026, and again at paragraph 22(b) of their further submissions, expressly accept that prayers 3 and 4 seek to rectify purely formal administrative records and that, pursuant to the slip rule, the record should accurately reflect this Court’s order of 30th April 2026. The position, which I have recorded in the background above, is straightforward. The appeal having subsisted from 30th April 2026 as against fifteen (15) respondents only, whose tenancies are constituted under fourteen (14) leases, the Judgment delivered two months later nevertheless carried forward the original cause title naming all nineteen respondents and referred throughout to nineteen leases. 2. Nothing whatever in the reasoning or in the outcome of the Judgment turned upon the number of respondents or the number of leases. The controlled-tenancy question was determined by reference to the form and content of the lease instruments generally, and the jurisdictional holding concerning the interim orders was wholly independent of how many tenants were before the Court. The retention of the original title and the reference to nineteen leases is, therefore, precisely the species of accidental slip or omission which section 99 of the Civil Procedure Act exists to cure. It is a failure of the Judgment to give effect to an order of the Court itself, made inter partes two months earlier. No prejudice can conceivably be occasioned to any party by an amendment which does no more than conform the Judgment to that order. On the contrary, the applicants are right that if left uncorrected the references to nineteen tenants and nineteen leases are apt to sow confusion in the remitted proceedings by suggesting that the tenancies of the struck-out respondents were the subject of, and are governed by, the Judgment, when they were not. This limb of the application is merited and is allowed. 3. Two consequential clarifications follow, and they are clarifications in the true sense, for they alter nothing. First, the remittal effected by the Judgment relates only to the references of the fifteen respondents who remained parties to the appeal, whose tenancies are constituted under the fourteen leases forming part of the record. Secondly, the Judgment made, and makes, no determination whatsoever in respect of the struck-out respondents or their references before the Tribunal. Those respondents ceased to be parties to the appeal on 30th April 2026; the Judgment neither binds them nor pronounces upon the fate of their references, the disposal of which is a matter for the Tribunal in accordance with the law. It would not be proper for this Court, on the present application, to purport to direct how the references of persons who are not before it are to be treated, and I decline to do so beyond the clarification just stated. **Prayers 2, 5, 6 and 8: Consequential and transitional directions and the restoration of possession** 1. The Judgment held that the Tribunal had no jurisdiction to make the interim orders of 3rd October 2025, and it set them aside. Those orders had restrained the applicants from implementing their decision declining renewal of the leases. The applicants obtained judgment in their favour upon that question and, a fortnight later, found themselves in precisely the position they had occupied before they appealed. The restraint has been held to have been imposed without jurisdiction; yet the state of affairs which it created continues, and it continues for so long as this Court declines to say what the setting aside means in practice. The applicants are right to say that a judgment producing that result is a judgment which has not been implemented. The point may be put more precisely. An order made without jurisdiction is not a defective order; it is a nullity. As Lord Denning M.R. observed in **Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169**, that which is void is in law a nullity, and every proceeding founded upon it is also bad and incurably bad. That principle is the foundation of the Judgment itself, and it is the foundation of the familiar admonition in **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1** upon which the respondents themselves relied. It follows that whatever rights the respondents may hereafter be found to possess, they possess none by virtue of the orders of 3rd October 2025; and their continued occupation, so far as it rests upon those orders, rests upon nothing at all. 2. The applicants succeeded in this appeal upon the proposition that a forum may not grant substantive relief affecting parties’ rights before its jurisdiction to do so has been established. That proposition is not selective in its operation, and it would be an odd result if a judgment vindicating it were made the occasion for a final order of possession pronounced before the very jurisdictional question it remitted has been answered. 3. Upon that footing the relief I grant is as follows. The respondents shall be at liberty to remain in occupation of the suit premises for a transitional period of sixty (60) days from the date of this Ruling. That period reflects the time within which the remitted preliminary issue ought reasonably to be determined, together with a margin for the transmission of the file to the Tribunal and for an orderly removal should removal become necessary. At the expiry of that period the respondents shall deliver up vacant possession of the suit premises to the applicants. That obligation shall not arise, and the order shall be of no force or effect, in respect of any respondent whose tenancy the Tribunal determines upon the remitted issue to be a controlled tenancy within the meaning of section 2 of Cap. 301. **The Ruling and Orders of the Tribunal dated 10th June 2026** 1. The Ruling and Orders of 10th June 2026 were made in BPRT Case No. E227 of 2026, as consolidated with BPRT Case No. E1107 of 2025. They are not the subject of this appeal. This appeal was brought against the Ruling of 2nd January 2026 and the interim orders of 3rd October 2025, and it has been determined. This Court cannot, upon a post-judgment motion in a concluded appeal, sit in judgment over a separate decision of the Tribunal which no party has appealed against and which is not before it. To do so would be to exercise appellate jurisdiction without an appeal. It follows that neither party may use those orders to enlarge, or to diminish, this Court’s jurisdiction over its own Judgment. The existence or the absence of a mechanism before the Tribunal cannot confer upon this Court a power it does not otherwise possess, nor take from it a power it has. The respondents’ fifth head of argument therefore fails. 2. That conclusion disposes also of the new issue raised in the applicants’ rebuttal, namely whether the Tribunal could properly exercise its statutory powers on 10th June 2026 while the question of its jurisdiction was pending before this Court. The issue was argued fully on both sides. The applicants say, relying upon **Republic v Business Premises Rent Tribunal & Another Ex parte Albert Kigera Karume [2015] KEHC 6921 (KLR)** and upon **Re Hebtulla Properties Ltd. [1979] KLR 96**, that the Tribunal’s powers under section 12 of Cap. 301 are exercisable only in relation to controlled tenancies, and that the orders of 10th June 2026 therefore proceeded upon an assumed jurisdiction. The respondents say that the same authority establishes the Tribunal’s general competence, as a subordinate court within Article 169(1)(d) of the Constitution, to grant temporary injunctions under section 63(c) of the Civil Procedure Act, and that a tribunal whose jurisdiction is under challenge may make interim protective directions preserving the status quo without prejudging that challenge. I decline to determine the issue, and I do so upon the ground of jurisdiction rather than of difficulty. However the question is framed, its object is the propriety of a ruling delivered by the Tribunal on 10th June 2026 in BPRT Case No. E227 of 2026. That ruling is not the subject of this appeal. No appeal has been preferred against it; no application for judicial review of it is before me; and the member who made it has not been heard. A question does not become justiciable in a concluded appeal merely because it is introduced by way of rebuttal submissions. I would add that the issue was raised for the first time at that stage, and that a party is not ordinarily to be permitted to open a new front in reply; but I prefer to rest my refusal upon the more fundamental ground. It does not touch the anterior question with which the Judgment of 30th June 2026 was concerned, which is not whether the Tribunal possesses the power, but whether, in relation to a tenancy whose controlled character has not been established, the occasion for its exercise has arisen. There is, moreover, a real distinction between a direction which merely holds the ring pending determination as the respondents characterise the custodial arrangement for rent and one which confers or extinguishes substantive rights upon the footing that the contested jurisdictional fact exists. Upon which side of that line the orders of 10th June 2026 fall is precisely the question I am not seised of. **Hearing by a different Member of the Tribunal** 1. The applicants ask that the remitted proceedings be heard by a member of the Tribunal other than Hon. Patricia May. The respondents describe the prayer as scandalous, frivolous, vexatious and an unconstitutional attempt to forum-shop offending Article 160(1) of the Constitution. I do not accept that characterisation. The respondents are right that adverse rulings do not of themselves establish bias, and right too as to the applicable test. In **Rai & 3 Others v Rai & 4 Others (Petition 4 of 2012) [2013] KESC 20 (KLR)** the Supreme Court, adopting **Metropolitan Properties Co. (FGC) Ltd v Lannon [1969] 1 QB 577** and the formulation in **Porter v Magill [2002] 2 AC 357**, held that the question is whether a reasonable, fair-minded and informed observer, knowing all the relevant facts, would apprehend a real possibility that the tribunal might not decide the matter impartially, and that the perception of fairness and of moral authority to hear the matter is the proper test. But the applicants’ complaint is not simply that the learned Member ruled against them. It is that she found, on 2nd January 2026, that the tenancies were controlled; and that on 10th June 2026, while the appeal challenging that very finding was pending and after expressly acknowledging its pendency, she reaffirmed it, stating that she found no legal or factual basis to deviate from that settled position. It is not frivolous for a litigant to ask whether an issue remitted for determination afresh on evidence ought to be determined by a member who has twice pronounced upon it. Whether the answer is yes or no, the question is a proper one, and I decline to stigmatize its asking 2. Appellate courts in this jurisdiction have long directed that a matter remitted for rehearing be heard by a different judicial officer, and have done so without any finding of misconduct and without hearing the officer concerned, because the direction is addressed to the institution and not to the individual. In **King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd) & Another v Standard Chartered Financial Services Ltd & 2 Others, Civil Appeal No. 102 of 1994 [1995] eKLR** the Court of Appeal (Omolo, Akiwumi and Tunoi, JJ.A.), applying **Metropolitan Properties Co. (FGC) Ltd v Lannon [1969] 1 QB 577** and **R v Liverpool City Justices, ex parte Topping [1983] 1 WLR 119**, allowed the appeal against a judge’s refusal to disqualify himself and ordered that the suit, High Court Civil Case No. 5002 of 1990, be heard de novo before a judge other than the judge who had until then been seised of it. The test the Court applied was whether a reasonable person would suspect that a fair trial was not possible, and the impressions the judge had necessarily formed in the earlier, part-heard proceedings made it undesirable that he should continue. The reasoning applies with at least equal force to a member of a tribunal who has twice pronounced upon the precise question now remitted for determination on evidence. As to allocation, the direction I make leaves the administrative function untouched in every respect save one: it identifies the member who is not to hear the remitted references, and leaves the selection of the member who is to hear them wholly to the Chairperson. 3. Prayer 7 accordingly succeeds. I direct that the references remitted by the Judgment be placed before, and heard and determined by, a member of the Business Premises Rent Tribunal other than Hon. Patricia May, the allocation being a matter for the Chairperson of the Tribunal. That direction is made upon no finding of bias, actual or apparent, and upon no criticism of the learned Member; it is made because a question remitted for determination afresh ought to be determined by a mind which has not already pronounced upon it, and because the parties and the public must be able to see that it is so determined. I note, and only so that the parties may verify it, that the Tribunal’s own order of 10th June 2026 directed that the consolidated files be mentioned on 16th July 2026 before Hon. M. Makori, so that this direction may accord with the course the Tribunal has in any event taken administratively. **Whether the application is an abuse of the process of the Court** 1. The respondents have urged the court to find that the application, save for prayers 3 and 4, is an abuse of the process of the Court, relying upon **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others, Civil Appeal No. 25 of 2002 [2009] eKLR** and **Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR)**, and upon the extended res judicata principle in **Pop-In (Kenya) Ltd & 3 Others v Habib Bank AG Zurich [1990] KECA 62 (KLR)**. I decline the invitation. As those authorities themselves make plain, the concept is imprecise and its categories are not closed, but its central feature is the improper use of judicial power: proceedings which are frivolous, vexatious or oppressive, wanting in bona fides, or brought to irritate and annoy an opponent or for a purpose collateral to the administration of justice. That is a serious finding and it is not made lightly. 2. I am not so satisfied. An application which the party alleging abuse has itself partly conceded, and conceded only in Grounds of Opposition filed eight days after the Motion, cannot readily be described as frivolous; the applicants had to come to Court to obtain the correction. Nor is the balance of the application frivolous merely because part of it fails. The question of what governs the parties’ position between the setting aside of the interim orders and the Tribunal’s determination is a real question, and the fact that the Tribunal itself thought it necessary to regulate that position in E227 of 2026 shows that it is not one the applicants invented. The Motion was brought openly, on notice, promptly after judgment and upon a candid disclaimer of any challenge to the Judgment; and where the applicants have failed it is because this Court lacks the power to give them what they seek, failure for want of jurisdiction being a different thing altogether from abuse of process. **Costs** 1. Costs are in the discretion of the Court under section 27 of the Civil Procedure Act and ordinarily follow the event unless otherwise stated by the Court. In considering the circumstances of this matter and having regard to sections 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution, I consider that the just order is that each party bears its own costs of the application. **Final Orders** 1. For the reasons set out above, the Notice of Motion dated 14th July 2026 succeeds in part. I make the following orders: **i. Pursuant to section 99 of the Civil Procedure Act, the Judgment delivered on 30th June 2026 is corrected so as to give effect to the order of this Court made on 30th April 2026, by:** **a) deleting from the cause title of the Judgment the names of the 3rd, 5th, 9th and 17th Respondents, and renumbering the remaining respondents accordingly; and** **b) substituting, wherever the Judgment refers to nineteen (19) respondents or to nineteen (19) leases, references to fifteen (15) respondents and fourteen (14) leases respectively.** **ii. It is clarified that the remittal effected by the Judgment relates only to the references of the fifteen (15) respondents who remained parties to the appeal, whose tenancies are constituted under the fourteen (14) leases forming part of the record.** **iii. It is further clarified that the Judgment makes no determination whatsoever in respect of the 3rd, 5th, 9th and 17th Respondents struck out by the order of 30th April 2026, or in respect of their references before the Business Premises Rent Tribunal, the disposal of which is a matter for the Tribunal in accordance with the law.** **iv. It is declared, by way of consequential direction giving effect to the Judgment, that the interim injunctive orders issued on 3rd October 2025 in BPRT Case No. E1107 of 2025 and the extensions thereof having been set aside as having been made without jurisdiction, no injunctive restraint arising out of those orders subsists, and the parties are restored, as between themselves, to the position obtaining before 3rd October 2025 in that reference.** **v. 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.** **vi. Order (v) above shall be of no force or effect in respect of any respondent whose tenancy is determined by the Business Premises Rent Tribunal, upon the preliminary issue remitted by the Judgment, to be a controlled tenancy within the meaning of section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301; and in that event the rights and obligations of that respondent and of the applicants inter se shall fall to be regulated by the Tribunal in accordance with that Act.** **vii. Possession under order (v) above shall be delivered up and, if necessary, recovered only through due process of law. Neither party shall resort to self-help, and nothing in this Ruling authorises the eviction of any respondent otherwise than in accordance with these orders.** **viii. Pending the expiry of the transitional period, the respondents are restrained, whether by themselves, their servants or their agents, from subletting the suit premises or any part thereof, from parting with possession thereof, from receiving goodwill from any third party not party to the lease agreements, and from carrying out any structural alterations to or effecting any change of user of the suit premises, save with the prior written consent of the applicants. This order is preservatory only and is made upon no finding that any of the acts restrained has occurred.** **ix. 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.** **x. Nothing in the Judgment or in this Ruling determines the validity, effect or subsistence of the Ruling and Orders of the Business Premises Rent Tribunal dated 10th June 2026 in BPRT Case No. E227 of 2026, those orders not having been the subject of this appeal.** **xi. Any relief sought in the Notice of Motion dated 14th July 2026 which is not expressly granted by these orders is deemed to have been declined.** **xii. Each party shall bear its own costs of the application.** **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF AUGUST 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:-** **Mr. Kabiru for the Applicants.** **Ms. Kemboi h/b for Mr. Wachira for the Respondents.** **Court Assistant: Joanne Omondi.**