1. The Notice of Motion was filed by the 1st Respondent seeking to strike out the appeal herein. The application is premised on the ground that the subject matter falls within the jurisdiction of the Environment and Land Court, as the dispute allegedly arises from a landlord-tenant relationship relating to distress for rent. The application was not supported by any affidavit.
2. In response, the Appellant filed Grounds of Opposition dated 9th February 2026, challenging the application on the basis that it was not supported by an affidavit. The Appellant further contended that the 1st Respondent was shifting goalposts, having failed to raise the issue of jurisdiction before the Chief Magistrate’s Court in CMCC E375 of 2021, and is currently pursuing recovery of costs.
3. Only the 1st Respondent filed submissions dated 10th February 2026, which the Court has duly considered. The main issue for determination is whether this Court has jurisdiction to entertain the appeal.
4. The Court has carefully considered the application, the response thereto, and the submissions on record and makes the following findings:
a. Jurisdiction is the foundation of any judicial determination. Without it, a court acts in vain. See Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR 1. From the record of the lower court, it is evident that the matter originated as a miscellaneous application by the Appellant seeking, inter alia, a mandatory injunction for the return of goods allegedly seized and a notice to show cause why the Respondents should not be held in contempt of orders issued in Mombasa BPRT No. 014 of 2021. The multiplicity of related proceedings presents a rather complex procedural history.
b. Initially, the Appellant filed Mombasa CMCC No. E947 of 2021 in which an interim injunction was granted against the 2nd Respondent only, as the 1st Respondent was not a party. The proceedings were later stayed by ELC Judicial Review No. 10 of 2021. The Appellant subsequently withdrew that suit with costs and filed CM Misc. Application No. E375 of 2021, enjoining the 1st Respondent.
The Respondent further indicated that issues of rent arrears had previously been addressed in BPRT Case No. 68 of 2006 and High Court Misc. Application No. 994 of 2006, although no supporting pleadings or rulings were placed before the lower court.
On 6th April 2023, Hon. Kalo, Chief Magistrate, delivered the ruling subject of this appeal, dismissing the Appellant’s Notice of Motion dated 15th September 2022. The application had sought a stay and setting aside of the proclamation of attachment dated 9th September 2022. The learned Magistrate held that the Appellant had acted inequitably through delay and non-attendance, thereby occasioning prejudice and delay in the proceedings.
c. The Appellant is aggrieved by the decision, particularly on the ground that he was denied the right to be heard before costs were assessed in the sum of Kshs 613,629/=. From the Court’s assessment, however, the dispute does not strictly relate to distress for rent but largely revolves around execution proceedings and costs-related issues.
It is noted that the Business Premises Rent Tribunal does not have jurisdiction to tax costs, which falls within the mandate of a taxing master under the Advocates Remuneration Order. No formal taxation proceedings appear to have been undertaken.
Instead, multiple applications relating to execution and stay of execution were filed across different forums by both parties.
d. The Court further observes that the central issue is not purely taxation of costs but concerns execution and alleged contempt arising from enforcement of orders in the BPRT proceedings. The Appellant seeks to challenge the legality of execution proceedings and the ruling of the lower court.
In order to properly determine the legality and propriety of the proclamation and subsequent execution process, the appeal must be fully heard on its merits. This Court therefore finds that it has sufficient jurisdiction to entertain and determine the appeal.
e. Accordingly, the Notice of Motion lacks merit and is hereby dismissed with costs.
5. It is so ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT / ONLINE THROUGH MS TEAMS THIS ……22nd… DAY OF …April…… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of:
Court Assistant: Bebora
Ms Gwallaha holding brief for Mr Gikandi.
No appearance for the Respondent.
The appeal is hereby mentioned for directions on 19th May 2026 before the Deputy Registrar .
2. In response, the Appellant filed Grounds of Opposition dated 9th February 2026, challenging the application on the basis that it was not supported by an affidavit. The Appellant further contended that the 1st Respondent was shifting goalposts, having failed to raise the issue of jurisdiction before the Chief Magistrate’s Court in CMCC E375 of 2021, and is currently pursuing recovery of costs.
3. Only the 1st Respondent filed submissions dated 10th February 2026, which the Court has duly considered. The main issue for determination is whether this Court has jurisdiction to entertain the appeal.
4. The Court has carefully considered the application, the response thereto, and the submissions on record and makes the following findings:
a. Jurisdiction is the foundation of any judicial determination. Without it, a court acts in vain. See Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR 1. From the record of the lower court, it is evident that the matter originated as a miscellaneous application by the Appellant seeking, inter alia, a mandatory injunction for the return of goods allegedly seized and a notice to show cause why the Respondents should not be held in contempt of orders issued in Mombasa BPRT No. 014 of 2021. The multiplicity of related proceedings presents a rather complex procedural history.
b. Initially, the Appellant filed Mombasa CMCC No. E947 of 2021 in which an interim injunction was granted against the 2nd Respondent only, as the 1st Respondent was not a party. The proceedings were later stayed by ELC Judicial Review No. 10 of 2021. The Appellant subsequently withdrew that suit with costs and filed CM Misc. Application No. E375 of 2021, enjoining the 1st Respondent.
The Respondent further indicated that issues of rent arrears had previously been addressed in BPRT Case No. 68 of 2006 and High Court Misc. Application No. 994 of 2006, although no supporting pleadings or rulings were placed before the lower court.
On 6th April 2023, Hon. Kalo, Chief Magistrate, delivered the ruling subject of this appeal, dismissing the Appellant’s Notice of Motion dated 15th September 2022. The application had sought a stay and setting aside of the proclamation of attachment dated 9th September 2022. The learned Magistrate held that the Appellant had acted inequitably through delay and non-attendance, thereby occasioning prejudice and delay in the proceedings.
c. The Appellant is aggrieved by the decision, particularly on the ground that he was denied the right to be heard before costs were assessed in the sum of Kshs 613,629/=. From the Court’s assessment, however, the dispute does not strictly relate to distress for rent but largely revolves around execution proceedings and costs-related issues.
It is noted that the Business Premises Rent Tribunal does not have jurisdiction to tax costs, which falls within the mandate of a taxing master under the Advocates Remuneration Order. No formal taxation proceedings appear to have been undertaken.
Instead, multiple applications relating to execution and stay of execution were filed across different forums by both parties.
d. The Court further observes that the central issue is not purely taxation of costs but concerns execution and alleged contempt arising from enforcement of orders in the BPRT proceedings. The Appellant seeks to challenge the legality of execution proceedings and the ruling of the lower court.
In order to properly determine the legality and propriety of the proclamation and subsequent execution process, the appeal must be fully heard on its merits. This Court therefore finds that it has sufficient jurisdiction to entertain and determine the appeal.
e. Accordingly, the Notice of Motion lacks merit and is hereby dismissed with costs.
5. It is so ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT / ONLINE THROUGH MS TEAMS THIS ……22nd… DAY OF …April…… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of:
Court Assistant: Bebora
Ms Gwallaha holding brief for Mr Gikandi.
No appearance for the Respondent.
The appeal is hereby mentioned for directions on 19th May 2026 before the Deputy Registrar .