1. Introduction
1.1 The Applicant filed a Notice of Motion dated 25th September 2025 seeking, inter alia,
the following reliefs: certification as urgent;
that the application be heard ex parte in the first instance;
temporary injunction(s) restraining the Respondent, their servants, agents and/or employees from evicting or interfering with the Applicant’s occupation of premises situated on Plot No. 124, Shanzu pending the hearing and determination of the application and the appeal;
leave to deposit Kshs. 7,000/- with the Court pending the hearing and determination of the application and appeal;
and a stay of execution of the ruling delivered on 4th September 2025 in Magistrate’s Court Civil Suit No. E1347 of 2023.
The Motion is supported by an affidavit sworn by the applicant.
1.2 The Respondent opposed the Motion by Grounds of Opposition dated 7th October 2025 and a comprehensive replying Statement of Grounds dated 11th November 2025 (and supporting material). The Respondent contends, inter alia,
that the Motion is belated, frivolous, tainted with mala fides, defective and an abuse of court process;
that the primary suit was filed in the wrong forum (matters under the Rent Restriction Act are for the Rent Restriction Tribunal); and
that the impugned ruling rendered on 4th September 2025 struck out the suit for want of jurisdiction.
1.3 The Court directed the parties to file written submissions . Counsel for the Respondent urged dismissal with costs. Counsel for the Applicant sought that the application be allowed.
2. Preliminary procedural point — omission to annex the impugned ruling
2.1 The Respondent asserted that the Notice of Motion (and/or the Memorandum of Appeal) was defective for failure to annex the impugned ruling and the record of the trial court. Initially, I accepted the Respondent’s contention that the omission was serious; however, counsel for the Applicant filed the Memorandum of Appeal belatedly. Having regard to the overriding objective of enabling the Court to do justice and the fact that the appeal has now been placed before the Court, the Court excuses the omission to annex the impugned ruling to the Memorandum of Appeal and/or Notice of Motion on the basis that that omission is curable and, in the particular circumstances of this matter, does not occasion irremediable prejudice to the Respondent. The Court makes this indulgence mindful of the distinction between defects which render proceedings dead on arrival and curable procedural lapses which can be corrected without injustice. The Court will therefore proceed to determine the Motion on its merits and on the other grounds advanced by the Respondent.
2.2 The indulgence granted in paragraph 2.1 is not to be taken as approval of casual non-compliance with practice and procedure; rather, it is a limited exercise of discretion invoked by the exigencies of fairness in these proceedings.
3. Facts as appears from the record
3.1 The Plaintiff/Appellant instituted a suit in the Magistrate’s Court (Magistrate’s Court Civil Suit No. E1347 of 2023) by a plaint lodged 3rd November 2023 seeking, amongst other reliefs, declarations and injunctive relief in relation to occupation of premises at Plot No. 124, Shanzu.
3.2 In the plaint the Plaintiff expressly pleaded that she is a tenant “under the Rent Restriction Act” in premises situated on Plot No. 124, Shanzu and alleged long-standing payment of rent (Kshs. 7,000 per month) to agents/collecting persons.
3.3 On 4th September 2025 the trial court delivered a ruling in which it held that it lacked jurisdiction to entertain matters arising under the Rent Restriction Act because such matters fall within the jurisdiction of the Rent Restriction Tribunal and struck out the suit for want of jurisdiction. Interim orders previously granted were vacated. The ruling was delivered and signed at Mombasa.
3.4 The Applicant lodged a Memorandum of Appeal on 17th September 2025 and thereafter filed the Motion dated 25th September 2025 seeking, among other reliefs, interlocutory injunctions and a stay of execution pending determination of the appeal.
4. Issues for determination
4.1 The Motion invites this Court to resolve the following principal issues:
a) Whether the Applicant has satisfied the legal threshold for grant of interlocutory/temporary and mandatory injunction(s) pending appeal and/or stay of execution of the ruling of 4th September 2025.
b) Whether, in the circumstances of this case, the Motion should be dismissed and costs awarded to the Respondent.
5. Legal principles
5.1 Injunctions pending appeal: The principles governing grant of interlocutory injunctions (including injunctions pending appeal) are well settled and include the need to show a prima facie case with a probability of success, the risk of irreparable injury if the injunction is not granted, and that the balance of convenience favours the grant of the injunction. See, by way of authorities, Giella v Cassman Brown & Co. Ltd and subsequent East African jurisprudence. Where the Court is in doubt, the balance of convenience is decisive.
5.2 Stay of execution pending appeal: Orders staying execution of a judgment pending appeal are discretionary. Applicants must demonstrate that the appeal is not frivolous, that they will suffer substantial loss if the stay is not granted, that they have been diligent in prosecuting the appeal, and ordinarily should offer security to cover the risk of prejudice to the respondent (see Order 42 Rule 6 CPR and relevant authorities). Where the impugned order is negative (e.g., an order striking out for want of jurisdiction), the content and effect of such order must be considered in assessing whether it is a proper candidate for stay.
5.3 Jurisdictional rulings: A ruling that a court lacks jurisdiction is fundamentally of a different character from a substantive order for the payment of money or the delivery up of property. Jurisdictional rulings that dispose of proceedings for want of jurisdiction are not always amenable to the ordinary stay regime; where the impugned decision properly determined is that the forum is wrong, the court’s powers must be exercised in light of that fact. See authorities on suits filed in wrong forum being “dead on arrival” and the limits to remedies available to revive such proceedings.
5.4 Abuse of process: Courts will not countenance litigants who use procedural devices to delay or frustrate lawful relief to successful parties. A motion that is calculated to circumvent a jurisdictional finding, without showing acceptable grounds, may be struck out as an abuse of process.
6. Application of legal principles to the facts
6.1.1 The central question in the intended appeal is whether the trial court erred in striking out the suit for want of jurisdiction where the Appellant herself pleaded that the tenancy was “under the Rent Restriction Act” . Once a party expressly anchors their claim under the Rent Restriction Act, jurisdiction automatically vests in the Rent Restriction Tribunal under section 4 of the Rent Restriction Act .
6.1.2 The Magistrate’s Court correctly determined that it lacked jurisdiction in the face of the Appellant's own pleadings. The jurisdictional defect was self-created and fatal. A suit filed in the wrong forum is null and void ab initio . No court can confer jurisdiction on itself through craft of pleading or judicial creativity.
6.1.3 The appeal therefore carries no arguable point capable of upsetting the jurisdictional finding. As a result, the appeal is hopeless, incompetent and devoid of legal merit .
6.2 Effect of Filing the Suit in the Wrong Forum — Appeal Also Incompetent
6.2.1 A suit struck out for want of jurisdiction rests on foundational law, not discretionary factual evaluation. An appeal challenging such a ruling must demonstrate error on jurisdiction — the Appellant has not.
6.2.2 Where jurisdiction is lacking, the entire proceedings collapse. Any appeal founded on such proceedings is equally defective and incapable of revival through appellate process.
6.2.3 I therefore find that the appeal, even though procedurally saved from technical defects, is substantively incurable and must itself be dismissed .
7. Disposition
Upon considering the application, the appeal, the record, and submissions of counsel, the Court now issues its final dispositive orders:
7.1 Procedural indulgence
a. The omission to annex the impugned ruling is excused solely to enable full consideration of the matter.
7.2 Substantive conclusions
b. The Notice of Motion dated 25th September 2025 is dismissed in its entirety.
c. The Appeal is equally devoid of merit, incompetent and hereby dismissed in full .
7.3 Costs
d. Costs of motion are awarded to the Respondent but
since the respondent had not responded to the appeal and they failed to attend court subsequently, the are not entitled to costs of the appeal.
7.4 Interim measures
e. Any interim orders previously granted are vacated forthwith.
8. Final Orders
Accordingly, IT IS HEREBY ORDERED:
1. The omission to annex the impugned ruling to the Memorandum of Appeal is excused.
2. The Notice of Motion dated 25th September 2025 is dismissed.
3. The ENTIRE APPEAL is dismissed for want of merit and incompetence.
4. Costs of both the Motion are awarded to the Respondent.
5. All interim orders are vacated.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17th DAY OF December 2025.
JUDGE OF THE HIGH COURT
Appearances:
For the Appellant: MS KARAMBU
For the Respondent: NO APPEARANCE
1.1 The Applicant filed a Notice of Motion dated 25th September 2025 seeking, inter alia,
the following reliefs: certification as urgent;
that the application be heard ex parte in the first instance;
temporary injunction(s) restraining the Respondent, their servants, agents and/or employees from evicting or interfering with the Applicant’s occupation of premises situated on Plot No. 124, Shanzu pending the hearing and determination of the application and the appeal;
leave to deposit Kshs. 7,000/- with the Court pending the hearing and determination of the application and appeal;
and a stay of execution of the ruling delivered on 4th September 2025 in Magistrate’s Court Civil Suit No. E1347 of 2023.
The Motion is supported by an affidavit sworn by the applicant.
1.2 The Respondent opposed the Motion by Grounds of Opposition dated 7th October 2025 and a comprehensive replying Statement of Grounds dated 11th November 2025 (and supporting material). The Respondent contends, inter alia,
that the Motion is belated, frivolous, tainted with mala fides, defective and an abuse of court process;
that the primary suit was filed in the wrong forum (matters under the Rent Restriction Act are for the Rent Restriction Tribunal); and
that the impugned ruling rendered on 4th September 2025 struck out the suit for want of jurisdiction.
1.3 The Court directed the parties to file written submissions . Counsel for the Respondent urged dismissal with costs. Counsel for the Applicant sought that the application be allowed.
2. Preliminary procedural point — omission to annex the impugned ruling
2.1 The Respondent asserted that the Notice of Motion (and/or the Memorandum of Appeal) was defective for failure to annex the impugned ruling and the record of the trial court. Initially, I accepted the Respondent’s contention that the omission was serious; however, counsel for the Applicant filed the Memorandum of Appeal belatedly. Having regard to the overriding objective of enabling the Court to do justice and the fact that the appeal has now been placed before the Court, the Court excuses the omission to annex the impugned ruling to the Memorandum of Appeal and/or Notice of Motion on the basis that that omission is curable and, in the particular circumstances of this matter, does not occasion irremediable prejudice to the Respondent. The Court makes this indulgence mindful of the distinction between defects which render proceedings dead on arrival and curable procedural lapses which can be corrected without injustice. The Court will therefore proceed to determine the Motion on its merits and on the other grounds advanced by the Respondent.
2.2 The indulgence granted in paragraph 2.1 is not to be taken as approval of casual non-compliance with practice and procedure; rather, it is a limited exercise of discretion invoked by the exigencies of fairness in these proceedings.
3. Facts as appears from the record
3.1 The Plaintiff/Appellant instituted a suit in the Magistrate’s Court (Magistrate’s Court Civil Suit No. E1347 of 2023) by a plaint lodged 3rd November 2023 seeking, amongst other reliefs, declarations and injunctive relief in relation to occupation of premises at Plot No. 124, Shanzu.
3.2 In the plaint the Plaintiff expressly pleaded that she is a tenant “under the Rent Restriction Act” in premises situated on Plot No. 124, Shanzu and alleged long-standing payment of rent (Kshs. 7,000 per month) to agents/collecting persons.
3.3 On 4th September 2025 the trial court delivered a ruling in which it held that it lacked jurisdiction to entertain matters arising under the Rent Restriction Act because such matters fall within the jurisdiction of the Rent Restriction Tribunal and struck out the suit for want of jurisdiction. Interim orders previously granted were vacated. The ruling was delivered and signed at Mombasa.
3.4 The Applicant lodged a Memorandum of Appeal on 17th September 2025 and thereafter filed the Motion dated 25th September 2025 seeking, among other reliefs, interlocutory injunctions and a stay of execution pending determination of the appeal.
4. Issues for determination
4.1 The Motion invites this Court to resolve the following principal issues:
a) Whether the Applicant has satisfied the legal threshold for grant of interlocutory/temporary and mandatory injunction(s) pending appeal and/or stay of execution of the ruling of 4th September 2025.
b) Whether, in the circumstances of this case, the Motion should be dismissed and costs awarded to the Respondent.
5. Legal principles
5.1 Injunctions pending appeal: The principles governing grant of interlocutory injunctions (including injunctions pending appeal) are well settled and include the need to show a prima facie case with a probability of success, the risk of irreparable injury if the injunction is not granted, and that the balance of convenience favours the grant of the injunction. See, by way of authorities, Giella v Cassman Brown & Co. Ltd and subsequent East African jurisprudence. Where the Court is in doubt, the balance of convenience is decisive.
5.2 Stay of execution pending appeal: Orders staying execution of a judgment pending appeal are discretionary. Applicants must demonstrate that the appeal is not frivolous, that they will suffer substantial loss if the stay is not granted, that they have been diligent in prosecuting the appeal, and ordinarily should offer security to cover the risk of prejudice to the respondent (see Order 42 Rule 6 CPR and relevant authorities). Where the impugned order is negative (e.g., an order striking out for want of jurisdiction), the content and effect of such order must be considered in assessing whether it is a proper candidate for stay.
5.3 Jurisdictional rulings: A ruling that a court lacks jurisdiction is fundamentally of a different character from a substantive order for the payment of money or the delivery up of property. Jurisdictional rulings that dispose of proceedings for want of jurisdiction are not always amenable to the ordinary stay regime; where the impugned decision properly determined is that the forum is wrong, the court’s powers must be exercised in light of that fact. See authorities on suits filed in wrong forum being “dead on arrival” and the limits to remedies available to revive such proceedings.
5.4 Abuse of process: Courts will not countenance litigants who use procedural devices to delay or frustrate lawful relief to successful parties. A motion that is calculated to circumvent a jurisdictional finding, without showing acceptable grounds, may be struck out as an abuse of process.
6. Application of legal principles to the facts
6.1.1 The central question in the intended appeal is whether the trial court erred in striking out the suit for want of jurisdiction where the Appellant herself pleaded that the tenancy was “under the Rent Restriction Act” . Once a party expressly anchors their claim under the Rent Restriction Act, jurisdiction automatically vests in the Rent Restriction Tribunal under section 4 of the Rent Restriction Act .
6.1.2 The Magistrate’s Court correctly determined that it lacked jurisdiction in the face of the Appellant's own pleadings. The jurisdictional defect was self-created and fatal. A suit filed in the wrong forum is null and void ab initio . No court can confer jurisdiction on itself through craft of pleading or judicial creativity.
6.1.3 The appeal therefore carries no arguable point capable of upsetting the jurisdictional finding. As a result, the appeal is hopeless, incompetent and devoid of legal merit .
6.2 Effect of Filing the Suit in the Wrong Forum — Appeal Also Incompetent
6.2.1 A suit struck out for want of jurisdiction rests on foundational law, not discretionary factual evaluation. An appeal challenging such a ruling must demonstrate error on jurisdiction — the Appellant has not.
6.2.2 Where jurisdiction is lacking, the entire proceedings collapse. Any appeal founded on such proceedings is equally defective and incapable of revival through appellate process.
6.2.3 I therefore find that the appeal, even though procedurally saved from technical defects, is substantively incurable and must itself be dismissed .
7. Disposition
Upon considering the application, the appeal, the record, and submissions of counsel, the Court now issues its final dispositive orders:
7.1 Procedural indulgence
a. The omission to annex the impugned ruling is excused solely to enable full consideration of the matter.
7.2 Substantive conclusions
b. The Notice of Motion dated 25th September 2025 is dismissed in its entirety.
c. The Appeal is equally devoid of merit, incompetent and hereby dismissed in full .
7.3 Costs
d. Costs of motion are awarded to the Respondent but
since the respondent had not responded to the appeal and they failed to attend court subsequently, the are not entitled to costs of the appeal.
7.4 Interim measures
e. Any interim orders previously granted are vacated forthwith.
8. Final Orders
Accordingly, IT IS HEREBY ORDERED:
1. The omission to annex the impugned ruling to the Memorandum of Appeal is excused.
2. The Notice of Motion dated 25th September 2025 is dismissed.
3. The ENTIRE APPEAL is dismissed for want of merit and incompetence.
4. Costs of both the Motion are awarded to the Respondent.
5. All interim orders are vacated.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17th DAY OF December 2025.
JUDGE OF THE HIGH COURT
Appearances:
For the Appellant: MS KARAMBU
For the Respondent: NO APPEARANCE