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ELCDismissedNairobi ELC Appeal No. E076 of 2022· [2025] KEELC 111 (KLR)

Koinange & another v Royal Gardens Limited (Environment and Land Appeal E098 of 2022) [2025] KEELC 111 (KLR)

Environment and Land Court
23 January 2025
3,868 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a tribunal granting ex parte orders is not bias, and dismissed a landlord's recusal appeal with costs.

What this practically means

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Executive summary

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The Appellants, a landlord and her auctioneer, appealed against a ruling of the Vice Chair of the Business Premises Rent Tribunal (NBI BPRT Case No. E781 of 2022, Hon. P. May) delivered on 30th September 2022, dismissing their application dated 15th September 2022 seeking the Vice Chair's recusal. The dispute arose from distress for rent levied against the 2nd Interested Party, Recon Supplies Limited, including attachment of motor vehicle KBV 562E, and ex parte injunctive orders issued by the Tribunal on 2nd September 2022 at the Respondent tenant's instance. The Appellants raised seventeen grounds including alleged bias, want of jurisdiction, lack of locus standi of Susan Wanjiru Kihonge (administratrix of the estate of the tenant company's deceased sole director), and an arbitration clause in an expired lease. The 2nd Interested Party opposed, contending the tenancy was controlled, the deponent had locus standi as administrator, and the appeal was incompetent for omitting the impugned application from the record of appeal contrary to Order 42 rule 13(4). The court framed three issues: the subject matter of the appeal, whether bias warranting recusal was demonstrated, and the orders to make. It held the appeal was strictly confined to the recusal prayer; that locus standi did not arise in the recusal application and belonged in a separate appeal (ELC E023 of 2023); that grounds 5 to 17 concerned the injunction, not recusal; and that granting ex parte orders as permitted by Order 40 rule 4 does not per se constitute bias, no specific evidence of corruption or judicial indiscretion having been tendered. The appeal was dismissed with costs to the Respondent and the 2nd Interested Party.

Key legal issues

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01

Whether the Tribunal Vice Chair's conduct, particularly the grant of ex parte orders, demonstrated bias warranting recusal

Holding

No bias was established; ex parte orders are permitted by Order 40 rule 4 where delay would defeat the injunction, and the Appellants pointed to no specific evidence of corruption or ulterior motive

Reasoning

The court held that granting ex parte injunctions is expressly allowed where the object of the injunction would be defeated by delay, so doing so does not constitute bias. The Appellants' only basis for alleging ulterior motive was the absence of provision for auctioneer's costs, which falls far short of the test for recusal based on a reasonable apprehension of bias in the mind of a fair-minded and informed observer. The Appellants also had the opportunity to, and did, move to vary the ex parte orders.

p. 7
02

Whether grounds of appeal beyond the recusal application could be entertained

Holding

No; grounds 5 to 17 related to the injunction, not recusal, and locus standi did not arise in the recusal application

Reasoning

The court emphasised that the appeal was strictly against the ruling on the recusal application dated 15th September 2022. Grounds 5 to 17 of the memorandum of appeal were grounds against the issuance of the injunction, which is the subject of a separate appeal (ELC E023 of 2023). The issue of locus standi was not raised in the recusal application and therefore fell outside the scope of the appeal.

p. 7
03

Whether the omission of the application dated 15th September 2022 from the record of appeal rendered the appeal incompetent under Order 42 rule 13(4)

Holding

The omission did not defeat the appeal as the court could glean the gist of the application from the impugned ruling, and the omission was not raised at the directions stage

Reasoning

The court acknowledged that the application dated 15th September 2022 was absent from the record of appeal, contrary to Order 42 rule 13(4). However, the Interested Party should have raised the issue at the directions stage when it confirmed receipt of the record, and the court was nonetheless able to discern the application's contents from the background set out in the impugned ruling, so the appeal proceeded on the recusal issue.

p. 6

Legal principles established

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  • The grant of ex parte orders in accordance with Order 40 rule 4 of the Civil Procedure Rules does not per se constitute bias.
  • An appeal must be confined to the issues that arose before the tribunal; parties are bound by their pleadings.
  • An appellate court interferes with a discretionary remedy such as an injunction only where it is shown the discretion was not exercised judiciously.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the Respondent and the 2nd Interested Party
On appeal from
Business Premises Rent Tribunal
NBI BPRT Case No. E781 of 2022
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act and Order 42 of the Civil Procedure Rules, 2010 over orders of the Business Premises Rent Tribunal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Koinange & another v Royal Gardens Limited (Environment and Land Appeal E098 of 2022) [2025] KEELC 111 (KLR)", Case Analysis (2025). Nairobi ELC Appeal No. E076 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/111/eng@2025-01-23

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