Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedApplication dated 20th August 2025 (arising from Nairobi BPRT Case No. E928 of 2022)

Ndungu t/a The Accra Restaurant v Mwangi & another (Legal Representatives of the Estate of the Late John Mwangi (Deceased)) (Environment and Land Appeal E039 of 2023) [2026] KEELC 3119 (KLR)

Environment and Land Court
21 May 2026
1,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court confirmed that BPRT tribunal orders can be adopted and executed as court decrees, even while an appeal is pending.

What this practically means

#

Executive summary

#
The applicant, who had succeeded before the Nairobi Business Premises Rent Tribunal in Case No. E928 of 2022 with an order for vacant possession, mesne profits of Kshs. 3,600,000 and costs of Kshs. 50,000, filed a notice of motion dated 20th August 2025 seeking that the tribunal's determination of 3rd February 2023 be adopted as a decree of the Environment and Land Court and that execution issue against the respondent through Okuku Agencies Auctioneers. The respondent opposed, contending that the court was functus officio and lacked jurisdiction, and that the applicant lacked locus standi, having filed grounds of opposition dated 17th November 2025. The applicant argued that a tribunal judgment cannot be executed unless adopted by the court, relying on section 15 of Cap 301, and that adoption is not a review of the merits but enforcement of a lawful decree. Justice Mohammed N. Kullow framed a single issue: whether the court could certify the BPRT order as its own. Relying on section 14 of Cap 301 and Bellevue Development Company Limited v. Vinayak Builders Limited, the court held that the named subordinate court forum does not oust the higher court's jurisdiction, particularly where an appeal over the same decision is pending, and that functus officio does not bar execution proceedings incidental to a final decision. The application was allowed with the tribunal determination adopted as a decree, execution authorised, and costs awarded to the applicant.

Questions the Court framed

#

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

  1. 1.whether this court has to certify an order issued by the BPRT as an order of this court

Key legal issues

#
01

Whether the Environment and Land Court could adopt and ratify the BPRT determination as a decree of the court notwithstanding a pending appeal

Holding

The court had jurisdiction to ratify the tribunal's order; adopting it is not merit-based re-engagement but enforcement of a lawful decree.

Reasoning

Section 14 of Cap 301 permits a certified tribunal determination to be filed in a competent subordinate court and enforced as a decree. Although the section names subordinate courts, this does not oust the jurisdiction of the higher Environment and Land Court, especially where an appeal over the same decision is already active in that court. The application was anchored on section 15, i.e. appeals filed in the ELC. The objection that the court was functus officio failed because the orders sought were for execution, not merit-based re-engagement.

p. 3
02

Whether the court was functus officio

Holding

No, the functus officio doctrine does not bar execution or other supplemental proceedings incidental to a final decision.

Reasoning

Relying on Bellevue Development Company Limited v. Vinayak Builders Limited, the court held that functus officio does not foreclose proceedings incidental to the final decision, including execution. What the doctrine bars is merit-based decisional re-engagement after final judgment. The orders sought did not seek to change anything in the court's orders on the appeal but merely to allow execution of the tribunal order that had been appealed against.

p. 3

Legal principles established

#
  • The functus officio doctrine does not foreclose proceedings incidental to or a natural consequence of a final decision, such as execution proceedings.
  • A superior court of higher hierarchy than the subordinate court named in section 14 of Cap 301 may entertain an application to ratify a tribunal determination where an appeal is already pending before it.

Court orders

#
  1. 1.The determination of the Business Premises and Rent Tribunal issued on 3rd February 2023 in Tribunal Case No. E928 of 2022 is adopted as an order of the court
  2. 2.The order so adopted is declared a proper decree of the court
  3. 3.An order is issued to Okuku Agencies Auctioneers to effect execution of the orders
  4. 4.Costs to be borne by the respondent

The bench

#

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

Wrote the judgment

On appeal from
Nairobi Business Premises Rent Tribunal
E928 of 2022
Jurisdiction invoked
Sections 14 and 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)

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.

That the determination of the Business Premises and Rent tribunal issued on the 3rd February 2023 in Tribunal case No E928 of 20222 is hereby adopted as an order of the court.
p. 3Final orders - adoption of tribunal determination
That an order is hereby issued to Okuku Agencies Auctioneers to efiect execution of the orders as above.
p. 4Final orders - execution
the doctrine of functus oficio does not foreclose proceedings that are incidental to or natural consequence of the final decision of the court such as execution proceedings
p. 3Functus officio
The fact that the section 14 above of cap 301 touches lists the subordinate court does not oust the jurisdiction of this court which is higher in hierarchy from entertaining such an application.
p. 3Jurisdiction to ratify tribunal orders

Issues in the judgment

#
minor

Internal date inconsistency: the tribunal order is described both as made on 3rd February 2023 and, in submissions, as dated 3rd February 2026.

minor

Typographical error in the case number of the tribunal in the final orders: 'E928 of 20222'.

minor

The judgment refers to the applicant inconsistently as 'she' and 'he' ('which he anchored on section 15').

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ndungu t/a The Accra Restaurant v Mwangi & another (Legal Representatives of the Estate of the Late John Mwangi (Deceased)) (Environment and Land Appeal E039 of 2023) [2026] KEELC 3119 (KLR)", Case Analysis (2026). Application dated 20th August 2025 (arising from Nairobi BPRT Case No. E928 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3119/eng@2026-05-21

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