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Court of AppealDismissedCivil Appeal No. 66 of 2012· [2017] KECA 8 (KLR)

Andrew O. Nyangweso v Alloyce Barasa & 2 others [2017] KECA 8 (KLR)

Court of Appeal of Kenya
20 July 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,200 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a Rent Restriction Tribunal order cannot be enforced in court unless the winning party first gives the tribunal written notice of the filing.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A.) against the judgment of Muchemi, J. of the High Court at Busia, which had declined to set aside a ruling of the Busia Resident Magistrate's Court refusing to adopt and enforce an ex parte order of the Rent Restriction Tribunal (RRT). The appellant had obtained ex parte orders from the RRT restraining distress for rent, then sought to have the Magistrate's Court adopt those orders as decrees of the court. The Magistrate refused, holding that section 31(1) of the Rent Restriction Act, Cap 296 imposed a condition precedent: the applicant must file a certified copy of the tribunal's order and give written notice of the filing to the tribunal, which would then transmit its record to the court. No such notice had been given, and the application was also premature as the matter had not proceeded inter partes. The High Court upheld that ruling, finding the notice requirement an important safeguard against forged tribunal orders. The Court of Appeal agreed, holding that the appellant's failure to give written notice meant the Magistrate's Court could not enforce the tribunal's order, and that whether the order had expired was immaterial. All other grounds of appeal stemmed from the same ruling and did not require separate consideration. The appeal was dismissed with costs to the respondents. The binding proposition for lower courts is that written notice to the tribunal under section 31(1) is a mandatory condition precedent to adoption and enforcement of RRT orders.

Key legal issues

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01

Compliance with the enforcement procedure for Rent Restriction Tribunal orders under section 31 of the Rent Restriction Act

Holding

Written notice of the filing of a certified copy of the tribunal's determination or order must be given to the tribunal as a condition precedent to enforcement by the court; non-compliance renders the adoption application incompetent.

Reasoning

Section 31(1) requires that after filing a certified copy of the tribunal order, notice in writing of the filing must be given to the tribunal; only then may the order be enforced as a decree of the court. The notice triggers transmission of the tribunal's record of proceedings to the court, which guards against forgery of tribunal orders. Since the appellant gave no such notice, the Magistrate's Court could not enforce the order, and whether it had expired was immaterial.

p. 2

Legal principles established

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  • Before a subordinate court may adopt and enforce as a decree a determination or order of the Rent Restriction Tribunal, the party filing the certified copy must first give written notice of the filing to the tribunal, as required by section 31(1) of the Rent Restriction Act; without that notice the court cannot enforce the order, and the expiry or pendency status of the order is immaterial.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Rent Restriction ActSection 31(1)
  • Rent Restriction ActSection 31(2)
On appeal from
High Court of Kenya at Busia
HCCA No. 39 of 2010
Jurisdiction invoked
Second appeal to the Court of Appeal under the provisions governing appeals from the High Court (the judgment does not cite the specific provision, apparently section 72 of the Civil Procedure Act by operation of a second appeal; the judgment itself does not state the jurisdictional basis)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Andrew O. Nyangweso v Alloyce Barasa & 2 others [2017] KECA 8 (KLR)", Case Analysis (2017). Civil Appeal No. 66 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/8/eng@2017-07-20

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