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)

2. That the respondent then filed the appeal herein which appeal was heard and dismissed. The applicant filed a bill of costs which was taxed and a ruling delivered on the 17th December 2024. 3. That the appeal having failed, and no stay orders granted on the ruling of the tribunal, the applicant seeks to have the ruling adopted by this court hence this application seeking the following orders 4. i. That the honourable court be pleased to adopt and/or ratify the determination of the Business Premises Rent Tribunal made and/or issued on 3rd day of February 2023 in Nairobi Business Premises Rent Tribunal Case No. E928 of 2022 between parties herein. ii. That consequent to prayer (1) hereinabove being granted, the determination of the said Tribunal be declared as a decree of this honourable court and issued forthwith. iii. That upon adoption of the determination of the Business Premises Rent Tribunal as the decree of this Honourable Court, the Honourable Court be pleased to issue an order of execution of orders herein to Okuku Agencies Auctioneers. iv. Costs of this application be borne by the Respondent. The application was supported by an afidavit sworn by Solomon Irungu Mwangi. Respondent’s case 5. The respondent opposed the application by filing grounds of opposition dated 17th November 2025 on grounds that the court was functus oficio hence lacked jurisdiction and that the applicant lacked locus standii to bring forth the application. Applicant’s submissions 6. The applicant’s submissions are dated 26th November 2025, where she submitted that the orders of the tribunal dated 3rd February 2026 should be deemed as valid decree and the tribunal cannot execute the decision unless it is adopted as an order of this court capable of being executed which he anchored on section 15 of cap 301 the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. That the respondent has delivered vacant possession but has failed to pay mesne profits and costs hence this application. On the issue of jurisdiction, the applicant argued that this court has the authority to make the orders prayed for since the tribunal judgement cannot be executed unless it is adopted by this court. That adopting the tribunals order is not a review of the merits but necessary to enforce a lawful degree Respondent’s submissions 7. The respondent submitted and reiterated the contents of its ground of opposition Analysis and Determination 8. I have considered the application, the grounds of opposition and the written submissions, I find that the only substantial issues for determination is whether this court has to certify an order issued by the BPRT as an order of this court. 9. Section 14 of Cap 301 touches on the issue of a person who wishes to have a determination made by the tribunal certified as an order. Section 14 (1) reads 1. A duly certified copy of any determination or order of a Tribunal may be filed in a competent subordinate court of the first class by any party to the proceedings before such Tribunal or by https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3119/eng@2026-05-21 2

page 2 of 4

the Tribunal, and on such copy being filed and notice thereof being served on the Tribunal by the party filing the same such determination or order may, subject to any right of appeal conferred by or under this Act, be enforced as a decree of the court. 2. The Tribunal shall, upon being served with a notice under subsection (1) of this section, or upon its own filing of such copy in the court, transmit to the court its record of the proceedings before it, and the same shall be filed by the court along with the certified copy of the determination or order 10. The said section provides for room for subordinate courts to ratify decisions of the tribunal into an order on application by a party. In this particular instance, the respondent has filed this instant appeal before the applicant has made any such application for ratification of the decision. In my view, the applicant has the liberty to invoke the unfettered jurisdiction of this court to have the order ratified, since there is already an active appeal in this court over the same decision. 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. Section 14 envisaged a scenario where no appeal has been filed in the Environment and Land court Act. The applicant has filed the application anchoring it on section 15 which is appeals filed in this court and so the application has been made on the appeal. 11. The respondent has not denied the existence of the order the only objection raised is that the court is functus oficio. The orders being sought herein are not seeking any merit-based re-engagement with the case in terms of changing anything in the orders it has made in the appeal rather seeking to allow for execution of the order that had been appealed against. In Bellevue Development Company Limited v. Vinayak Builders Limited & another (2014) eKLR, the court warned against overstretching the principle of functus oficio by holding that:“ .....care should be taken not to inadvertently or otherwise overstretch the application of the concept of functus oficio; for, in all senses of the law, it does not foreclose proceedings which are incidental to or natural consequence of the final decision of the court such as the execution proceedings including contempt of court proceedings, or any other matter on which the court could exercise supplemental jurisdiction. Therefore, in determining whether the court is functus oficio one should look at the order or relief which is being sought in the case despite that judgement has already been rendered by the court”. From the above case law, the principle which emerges is that 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 or any other matter that the court can exercise supplementary jurisdiction. It is clear that what the doctrine bars is merit-based decisional re-engagement with the case once final judgment has been entered and a decree issued. Since the evidence of the order is uncontroverted and having been satisfied that the said order exists attached on the application herein, and that the court is not functus oficio, I find no reason as not to allow the application Final disposition 12. For the reasons as above the notice of motion application dated 20th August 2025 is merited and allowed in the following terms. i. 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. ii. That the order as in ( i) above is a declared a proper decree of this court https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3119/eng@2026-05-21 3

page 3 of 4

iii. That an order is hereby issued to Okuku Agencies Auctioneers to efiect execution of the orders as above. iv. Costs be to borne by the respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF MAY 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Mulinge for the Plaintifi/Applicant Mr. Mwangangi for the Respondent Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3119/eng@2026-05-21 4

page 4 of 4