David Thiong’o T/A Welcome General Stores v Market Fancy Emporium
The bottom line
#Kenya's Court of Appeal ruled that High Court decisions on controlled tenancy disputes are final, blocking landlords' and tenants' further appeals.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal where the High Court refused stay, not injunction
The intended appeal was not arguable because the High Court was never asked for an injunction; granting the injunction now sought would directly prevent implementation of the Magistrate's order rather than the Judge's order.
The court distinguished between what was refused below (a stay) and what was now sought (an injunction). If the superior court had been asked for and refused an injunction, the Court of Appeal could consider granting one on its own merits. Since the injunction sought operates against the Magistrate's summary judgment order rather than Visram J's order, the applicant failed the arguability threshold from that standpoint.
Jurisdiction of the Court of Appeal over appeals under the Landlord and Tenant Act
The proviso to section 15(4) of the Act makes the High Court's decision on any appeal under the Act final, so the Court of Appeal has no jurisdiction; the judge's grant of leave could not override the statute.
The tenancy appeared to be a controlled tenancy under the Act, so the matter fell to be determined under its provisions. The proviso to section 15(4) expressly excludes further appeal. The court held it doubtful that leave granted by a High Court judge could displace the specific provisions of an Act of Parliament, reinforcing the conclusion that no arguable appeal lay.
Legal principles established
#- An applicant under Rule 5(2)(b) must first satisfy the court that the appeal is arguable (not frivolous), and secondly that the appeal's success would be rendered nugatory if the injunction is refused; the nugatory consideration arises only once arguability is established.
- The decision of the High Court on an appeal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is final and is not subject to further appeal to the Court of Appeal.
- Leave granted by a judge of the High Court cannot override an express statutory bar on further appeals contained in an Act of Parliament.
Court orders
#- 1.The applicant's notice of motion dated 4th April 2007 and lodged on 5th April 2007 is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- High Court at Nairobi
- H.C.C. Appeal No. 914 of 2005
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction pending filing of an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Thiong’o T/A Welcome General Stores v Market Fancy Emporium", Case Analysis (2010). Civil Application No. 74 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/189/eng@2010-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.