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ELCAllowedCivil Appeal (from Kisii Chief Magistrate's Court, Misc. Civil Application No. 137 of 2019)

Richard Atandi v Judes General Wholesalers & Supermarket Limited [2020] KEELC 521 (KLR)

Environment and Land Court
25 November 2020
JOJ.M. ONYANGO
2,847 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed you can challenge ex parte court orders through review, and preliminary objections cannot rely on disputed facts.

What this practically means

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Executive summary

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The Appellant was the Respondent's tenant operating a bar on L.R. No. Kisii Municipality/Block III/306 & 307. The Respondent obtained an ex parte order in Miscellaneous Civil Application No. 137 of 2019 adopting and ratifying what it claimed was a determination of the Business Premises Rent Tribunal under Section 14(1) of the Landlord and Tenant (Shops, Hotel & Catering Establishment) Act. The Appellant then applied to stay, review and set aside those orders, contending he was never served and that the annexed 'determination' was not one capable of adoption since it did not emanate from the Tribunal's Chairman. The learned magistrate (Hon. E.A. Obina) upheld a preliminary objection, holding that the orders had been executed, the application was spent, and the court had become functus officio with no suit pending. On appeal, Onyango J held that the objection did not raise pure points of law because the claim that the Appellant had been evicted and a new tenant installed rested on disputed, unproven facts asserted only from the bar. The court further held that the trial court was not functus officio: the Appellant had sought review and setting aside of the orders, and such applications lie under Order 45(1) of the Civil Procedure Rules, with the court retaining a wide discretion to set aside ex parte orders grounded in the constitutional right to be heard. The Nyamira F.C.S. and Anastacia Wagieciengo authorities were distinguished as dealing with interlocutory orders in concluded suits. The appeal was allowed with costs; the ruling of 3rd December 2019 was substituted with an order dismissing the preliminary objection.

Questions the Court framed

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

  1. 1.Whether the preliminary objection raised pure points of law
  2. 2.Whether the court became functus officio after issuing orders allowing Misc. Civil Application No. 137 of 2019

Key legal issues

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01

Whether the preliminary objection raised pure points of law

Holding

The objection did not raise pure points of law; the claim that the application was overtaken by events rested on disputed facts requiring evidence.

Reasoning

The Respondent's assertion that a new tenant occupied the premises was made from the bar and did not amount to evidence. Whether the Appellant had actually been evicted was disputed and could only be established through evidence. A preliminary objection cannot be founded on contested factual matters; such grounds are argumentative and incapable of being upheld as a true preliminary objection.

p. 3
02

Whether the trial court became functus officio after allowing the Respondent's miscellaneous application

Holding

The court was not functus officio; it retained jurisdiction to review, stay or set aside its orders under Order 45(1) CPR and its discretion to set aside ex parte orders.

Reasoning

The Appellant's application sought stay, review and setting aside of the court's orders, not an interlocutory mandatory injunction in a concluded suit. The cited authorities (Nyamira F.C.S. and Anastacia Wagieciengo) were distinguishable because those applicants sought interlocutory orders without a pending suit. Review is available under Order 45(1) on discovery of new matter, error apparent or sufficient reason, and ex parte orders may be set aside where the party was not heard.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot rest on disputed facts requiring evidence.
  • A court that has issued orders is not functus officio where a party applies for review or setting aside of those orders.
  • Courts have a wide discretion to set aside ex parte orders to prevent injustice, rooted in the right to be heard.

Court orders

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  1. 1.Appeal allowed with costs to the Appellant
  2. 2.Ruling dated 3rd December 2019 substituted with an order dismissing the preliminary objection dated 25th November 2019

The bench

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

JO
majority

Wrote the judgment

On appeal from
Magistrate's Court (Kisii)
Miscellaneous Civil Application No. 137 of 2019
Jurisdiction invoked
First appeal from the magistrate's court over a ruling on a preliminary objection in a matter arising under the Landlord and Tenant (Shops, Hotel & Catering Establishment) Act

Quotable passages

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

For these reasons, I allow the appeal with costs to the Appellant. The ruling dated 3rd December 2019 is substituted with an order dismissing the preliminary objection dated 25th November 2019.
p. 4Final orders - disposal of the appeal
The Appellant, having sought to review or set aside the orders made by the court, it could not be said that the court was functus officio.
p. 3Functus officio and review
This was a disputed issue that did not constitute a pure point of law.
p. 3Preliminary objection - pure points of law
The court’s expansive discretion to set aside ex parte orders and decrees stems from the constitutional right to be heard before an adverse decision is taken against a person.
p. 4Right to be heard and setting aside ex parte orders

Issues in the judgment

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minor

The judgment attributes the Mukisa Biscuits definition of a preliminary objection to 'Ojwang’ JA.' although the passage is conventionally attributed to Law JA; the judgment as printed reads:

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Richard Atandi v Judes General Wholesalers & Supermarket Limited [2020] KEELC 521 (KLR)", Case Analysis (2020). Civil Appeal (from Kisii Chief Magistrate's Court, Misc. Civil Application No. 137 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/521/eng@2020-11-25

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