Paul Otieno Olewe t./a Min Piny International Limited v Nderi & another; George Otieno Osino t/a Cosino Investment (Objector); Lysajoy Auctioneers (Interested Party) (Environment and Land Appeal E060 of 2024) [2024] KEELC 4266 (KLR)
The bottom line
#The Environment and Land Court dismissed a tenant's bid to halt eviction and struck out objection proceedings filed in the wrong court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court is seized of the requisite jurisdiction to entertain and adjudicate upon the Objection Proceedings
- 2.Whether the Objection Proceedings are competent
- 3.Whether the Appellant has established the requisite ingredients to warrant the issuance of an order of stay of execution pending appeal
Key legal issues
#Jurisdiction over objection proceedings
The court lacked jurisdiction over the Objector's proceedings because no decree had issued from it; only the BPRT, whose decree was under execution, could entertain the objection
Objection proceedings under Order 22 Rule 51 must be lodged before the court that issued the judgment and decree being executed. No judgment or decree had been issued in the appeal, so there was no decree holder or judgment debtor before the court. The BPRT, a subordinate court under Article 169, issued the orders under execution and was the proper forum.
Competence of the objection proceedings
The reliefs sought (restraint of eviction and distress against the Appellant) are not available to an objector; the proceedings were a disguised, sponsor-motivated attempt to obtain injunctory relief already refused, amounting to abuse of process
An objector's interest is limited to protecting specific goods claimed from attachment, not defeating execution of a lawful decree against the judgment debtor. The Objector was propagating the Appellant's interests, seeking through the backdoor the stay the court had declined, which constitutes abuse of the due process of the court.
Ingredients for stay of execution pending appeal
The Appellant failed to establish sufficient cause and substantial loss; irreparable loss is not the applicable test and the appeal on the lease expiry appeared ex-facie frivolous
An applicant for stay must demonstrate sufficient cause (a credible appeal) and substantial loss under Order 42 Rule 6(2). The Appellant instead pleaded irreparable loss, an inapplicable concept. A five-year-three-month lease commencing 7th January 2019 lapses by April 2024, rendering an appeal on whether it expired in 2024 or 2025 frivolous. The burden under Sections 107-109 of the Evidence Act was not discharged.
Legal principles established
#- Objection proceedings must be lodged before the court that issued the decree under execution; a court without jurisdiction renders proceedings a nullity
- An objector cannot seek an absolute stay of execution or restraint of eviction against the judgment debtor; an objector's interest is limited to protecting specific goods claimed
- Substantial loss is the foundation of an application for stay of execution pending appeal
Court orders
#- 1.The Application dated the 3rd May 2024 be and is hereby Dismissed
- 2.The Application dated 14th May 2024 be and is hereby struck out for lack of Jurisdiction
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal (BPRT)
- Nairobi BPRT Cause No. E453 of 2023
- Jurisdiction invoked
- Appeal from the Business Premises Rent Tribunal, a subordinate court under Article 169 of the Constitution, 2010
Relief refused
#Stay of execution of the BPRT orders of 8th April 2024 pending appeal
Appellant failed to demonstrate sufficient cause and substantial loss; the appeal on the lease term appeared ex-facie frivolous
Injunction restraining the Respondents from evicting the Appellant or levying distress (Objector's application)
Objection proceedings were lodged in a court without jurisdiction and the reliefs sought are not available to an objector; proceedings were a disguised, abusive attempt to defeat the Tribunal's orders
Costs
No orders as to 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.
The Application dated the 3rd May 2024 be and is hereby Dismissed.
The Application dated 14th May 2024 be and is hereby struck out for lack of Jurisdiction.
Without jurisdiction, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.
an Objector cannot seek to procure an absolute stay of execution of the decree, save to the limited extent that the execution is said to impact on the Objector's goods or property.
Substantial loss in its various forms, is the corner stone of both jurisdictions for granting a stay.
the objection proceedings beforehand have been filed and lodged before a court without the requisite jurisdiction.
No orders as to costs.
Issues in the judgment
#The judgment does not expressly name the Objector or state the exact court in which the ruling is delivered; the Objector is referred to only as 'the Objector' and the appellant's (Objector's) supporting affidavit deponent is not separately identified
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Otieno Olewe t./a Min Piny International Limited v Nderi & another; George Otieno Osino t/a Cosino Investment (Objector); Lysajoy Auctioneers (Interested Party) (Environment and Land Appeal E060 of 2024) [2024] KEELC 4266 (KLR)", Case Analysis (2024). Nairobi BPRT Cause No. E453 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4266/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.