https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12756

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEALLATE DIVISION** **CIVIL APPEAL NO. E023 OF 2025** **WESTFIELD SHOPPING MALL LTD....................APPELLANT/APPLICANT** **VERSUS** **KHADIJA MABRUK HEMED........................................1ST RESPONDENT** **SHAWAFEEL DELICIOUS LTD....................................2ND RESPONDENT** **LAST MILE CARRIER LTD...........................................3RD RESPONDENT** **RULING** 1. This ruling is in respect to the Notice of Motion dated 10th November 2025 in which the Appellant/Applicant seeks an order of stay of execution of the judgment and decree delivered by the Business Premises Rent Tribunal (BPRT) on 30th May 2025 in Tribunal Case No. E1273 of 2023 pending the hearing and determination of the appeal. 2. The application is expressed to be brought under Order 22 Rule 22, Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules, Sections 3A, 63(c) and (e) and 80 of the Civil Procedure Act, together with all other enabling provisions of the law. 3. The application is supported by the affidavit of **Robert Nyamweya Onchonga**, a director of the Appellant, who deposes that the Appellant has lodged an appeal against the Tribunal's judgment and requested certified proceedings for purposes of preparing the record of appeal. 4. It is the Applicant's case that the Respondents have proceeded with taxation of costs and are poised to execute the decree. The Applicant contends that unless execution is stayed, its goods will be proclaimed and attached, thereby rendering the appeal nugatory. It further maintains that the intended appeal raises arguable issues regarding liability for rent, water charges and Value Added Tax (VAT), and expresses willingness to furnish security as the Court may direct. 5. The Respondents oppose the application through Grounds of Opposition dated 2nd February 2026. They contend that the Applicant has failed to demonstrate substantial loss, that the application was filed after inordinate delay, that no security has been furnished and that the Tribunal's decision is substantially a negative order incapable of execution. They further contend that the application has been overtaken by events following taxation of the bill of costs and adjustment of the taxed costs against the rent account. 6. Parties filed written submissions in support of their respective positions and cited various authorities on the principles governing stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. 7. Before I embark on considering the merits of the application, this court obligated to satisfy itself that it has jurisdiction to entertain the appeal and the interlocutory application before it. 8. Jurisdiction is everything and without it a court has no power to make one more step. This principle was succinctly stated in ***Owners of the Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd* [1989] KLR 1**, where Nyarangi JA held that where a court finds that it has no jurisdiction, it must down its tools. 9. It is not disputed that the impugned judgment was delivered by the Business Premises Rent Tribunal established under the **Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301**. The dispute concerns a controlled tenancy and issues relating to rent, service charges and other obligations arising from a landlord-tenant relationship in respect of business premises. 10. Article 162(2)(b) of the Constitution mandated Parliament to establish a court with the status of the High Court to hear and determine disputes relating to the environment and the use, occupation of and title to land. Pursuant thereto, Parliament enacted the **Environment and Land Court Act, No. 19 of 2011**. 11. Section 13(2) of the Environment and Land Court Act confers upon the Environment and Land Court jurisdiction to hear and determine disputes relating to, inter alia, land use planning, title, tenure, boundaries, rents, valuations, mining, minerals and other disputes relating to environment and land. More importantly, Section 13(7) empowers that Court to grant interlocutory reliefs, including orders of stay, injunctions and any other appropriate relief. 12. Further, **Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act** expressly provides that any party aggrieved by the determination or order of the Business Premises Rent Tribunal may appeal to the Environment and Land Court. 13. The jurisdiction of the Environment and Land Court over appeals emanating from the Business Premises Rent Tribunal has been affirmed in numerous decisions. In ***Co-operative Bank of Kenya Ltd vs. Patrick Kang'ethe Njuguna & 5 Others* [2017] eKLR**, the Court of Appeal reiterated that disputes concerning interests in land and landlord-tenant relationships fall within the jurisdiction donated by Article 162(2)(b) and Section 13 of the Environment and Land Court Act. 14. Similarly, in ***Suzanne Achieng Butler & 4 Others vs. Redhill Heights Investments Ltd & Another* [2016] eKLR**, the Court emphasized that disputes arising from occupation and use of land fall within the exclusive jurisdiction of the Environment and Land Court. 15. It is therefore evident that this appeal, having arisen from proceedings before the Business Premises Rent Tribunal concerning a controlled tenancy, falls squarely within the jurisdiction of the Environment and Land Court. 16. Consequently, I find that this Court lacks jurisdiction to entertain either the appeal or the interlocutory application for stay of execution. 17. From the foregoing findings, I find that I cannot proceed to determine the merits of the application. To do so would amount to exercising jurisdiction that the Constitution and statute have reserved for a court of equal status. 18. In the interests of justice, and bearing in mind that the appeal was filed before a court of concurrent status, I consider it appropriate that the matter be placed before the court clothed with the requisite jurisdiction instead of striking it out. This approach accords with the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution, which require courts to facilitate the just, expeditious and proportionate resolution of disputes. 19. Consequently, I make the following orders: 20. ***I hereby find that this Court lacks jurisdiction to hear and determine this appeal and the Notice of Motion dated 10th November 2025.*** 21. ***The Deputy Registrar shall forthwith transmit the entire court file to the Environment and Land Court at Nairobi for hearing and determination before a Judge of that Court.*** 22. ***Any interim orders subsisting at the time of this ruling shall remain in force for fourteen (14) days only to enable the parties to move the Environment and Land Court for appropriate directions, failing which the said orders shall automatically lapse.*** 23. ***Costs of the application shall abide the outcome of the appeal before the Environment and Land Court.*** **It is so ordered.** **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**