Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutNotice of Motion dated 17th February 2025, arising from ELCLA/E108/2024 (ELC Kisumu)

Red and Yellow Outdoors Limited v Shiloah Investments Limited (Civil Application E017 of 2025) [2025] KECA 1874 (KLR)

Court of Appeal of Kenya
7 November 2025
2,397 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed it cannot hear appeals from Environment and Land Court decisions in protected tenancy disputes, so parties must build their strongest case at the ELC stage.

What this practically means

#

Executive summary

#
The applicant, a former tenant at Kisumu Mega Plaza, sought a stay of proceedings in the Environment and Land Court at Kisumu (ELCLA/E108/2024) pending an appeal from a ruling of E. Asati J. delivered on 6th February 2025 dismissing its applications for conservatory orders and access to the premises. The dispute arose from a BPRT ruling of 18th December 2024 upholding a preliminary objection that the applicant occupied an open space not constituting a protected tenancy. When the application came up for hearing, the respondent raised a preliminary objection on jurisdiction, arguing that section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act makes the ELC's decision on an appeal from the BPRT final, with no further appeal. Counsel for the applicant countered that the objection was a mere procedural technicality barred by Article 159 of the Constitution and that Article 164(3) conferred a right of appeal. The Court of Appeal (Asike-Makhandia, H.A. Omondi and P. Nyamweya, JJ.A) upheld the objection. Relying on Supreme Court authority, it held that jurisdiction is a substantive question, not a procedural technicality; that Article 164(3) does not grant litigants an unfettered right of appeal; and that section 15 is a finality clause, distinguishable from an ouster clause, which validly bars second appeals from the ELC to the Court of Appeal. The application was struck out with no order as to costs, the jurisdictional point having been raised for the first time at the hearing.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal has jurisdiction to entertain the application given section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, which provides that the decision of the ELC on an appeal from the BPRT is final
  2. 2.Whether the jurisdictional objection was a mere procedural technicality barred by Article 159 of the Constitution
  3. 3.Whether Article 164(3) of the Constitution confers a universal right of appeal to the Court of Appeal

Key legal issues

#
01

Whether the Court of Appeal can hear an appeal or application arising from an ELC decision on appeal from the BPRT

Holding

It cannot; section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act makes the ELC's decision final and denies a further appeal to this Court, rendering the application incompetent

Reasoning

Section 15(4) of the Act provides that the decision of the ELC on any appeal under the Act shall be final and not subject to further appeal. Article 164(3) of the Constitution does not grant a universal right of appeal; a right of appeal is a creation of law, expressly conferred by the Constitution or a statute. Section 15 is a finality clause, distinguishable from an ouster clause, and it validly restricts second appeals in the interests of finality of disputes. The application was therefore incompetent and had to be struck out.

p. 5
02

Whether the jurisdictional objection was a procedural technicality saved by Article 159

Holding

No; jurisdiction goes to the heart of the matter and cannot be treated as a procedural technicality

Reasoning

Relying on the Supreme Court's decision in Samuel Macharia & another v Kenya Commercial Bank Limited & 2 others, the Court held that a court can only exercise jurisdiction as conferred by the Constitution or written law and cannot arrogate to itself jurisdiction exceeding that conferred by law. The question whether a court has jurisdiction is not a mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction a court cannot entertain any proceedings.

p. 3

Legal principles established

#
  • Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is a finality clause: an appeal from the ELC, sitting on appeal from the BPRT, does not lie to the Court of Appeal, and this Court has no jurisdiction over such appeals
  • Article 164(3) of the Constitution does not confer an unfettered right of appeal on litigants; a right of appeal is created by the Constitution or statute, and Parliament may by statute prescribe or limit the Court of Appeal's jurisdiction
  • A jurisdictional challenge is a substantive question, not a procedural technicality that can be cured under Article 159 of the Constitution

Court orders

#
  1. 1.The Notice of Motion application dated 17th February 2025 is struck out
  2. 2.No order as to costs, each party to bear their own costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Kisumu
ELCLA/E108/2024
Jurisdiction invoked
Article 164(3) of the Constitution read with section 3(1) of the Appellate Jurisdiction Act; the court held that section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act denies any appeal to it from the ELC sitting as an appellate court from the BPRT

Relief refused

#

Stay of proceedings in the ELC at Kisumu in ELCLA/E108/2024 pending the hearing of the appeal

The application was incompetent because the applicant has no right of appeal to the Court of Appeal under section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

p. 5

Costs

No order as to costs, since the respondent raised the issue of jurisdiction for the first time during the hearing of the application (each party to bear their own costs)

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We accordingly find that the Notice of Motion application dated 17th February 2025 is incompetent, for the reason that the applicant has no right of appeal to this Court by dint of section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The said application is hereby struck out with no order as to costs, since the respondent raised the issue of jurisdiction for the first time during the hearing of the application.
p. 5Final orders - striking out for want of jurisdiction
section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act is in the class of what are commonly referred to as finality clauses, and in our context, restricts second appeals from decisions of some tribunals and administrative bodies in the interests of finality of disputes.
p. 2Finality clauses distinguished from ouster clauses
As such, article 164(3) defines the extent of the powers of the Court of Appeal but does not grant a litigant an unfettered access to the Court of Appeal.
p. 4Nature of the right of appeal under Article 164(3)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Red and Yellow Outdoors Limited v Shiloah Investments Limited (Civil Application E017 of 2025) [2025] KECA 1874 (KLR)", Case Analysis (2025). Notice of Motion dated 17th February 2025, arising from ELCLA/E108/2024 (ELC Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1874/eng@2025-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.