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)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether this court has to certify an order issued by the BPRT as an order of this court
Key legal issues
#Whether the Environment and Land Court could adopt and ratify the BPRT determination as a decree of the court notwithstanding a pending appeal
The court had jurisdiction to ratify the tribunal's order; adopting it is not merit-based re-engagement but enforcement of a lawful decree.
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.
Whether the court was functus officio
No, the functus officio doctrine does not bar execution or other supplemental proceedings incidental to a final decision.
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.
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.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.The order so adopted is declared a proper decree of the court
- 3.An order is issued to Okuku Agencies Auctioneers to effect execution of the orders
- 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.
That an order is hereby issued to Okuku Agencies Auctioneers to efiect execution of the orders as above.
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
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.
Issues in the judgment
#Internal date inconsistency: the tribunal order is described both as made on 3rd February 2023 and, in submissions, as dated 3rd February 2026.
Typographical error in the case number of the tribunal in the final orders: 'E928 of 20222'.
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.