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ELCDismissednull (not stated in the judgment)· [2015] KEELC 130 (KLR)

E.K Wachira & Sons K Ltd v Kagondu & Mukunya Advocates [2015] KEELC 130 (KLR)

High Court of Kenya
8 October 2015
2,419 words in judgment
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The bottom line

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A Kenyan court refused to let a landlord appeal a rent dispute two and a half years late, ruling that failing to follow up your own case is no excuse.

What this practically means

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Executive summary

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E.K Wachira & Sons (K) Ltd, the landlord, applied for leave to file an appeal out of time against the judgment of the Chairman of the Business Premises Rent Tribunal in Nyeri BPRT case No. 39 of 2009/2007, delivered on 9th September 2009, dismissing its reference seeking to increase rent from Kshs.14,000 to Kshs.36,000 per month. The applicant attributed the delay to the judgment having been delivered without notice, claiming it learned of the judgment in September 2010 and only received certified proceedings on 13th March 2012. The respondent opposed, contending the delay of about two and a half years was inordinate and inexcusable, that the Tribunal had indicated judgment would be delivered in the next session, and that it had since vacated the premises and lost interest, so defending an appeal would prejudice it. The court considered the well-established factors for extension of time: length of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent, noting these are not exhaustive. It found that the Tribunal had informed the parties judgment would be delivered in the next session, and any diligent litigant would have checked the outcome. The applicant's failure to follow up, and its waiting for certified copies before applying for leave, amounted to lack of diligence. The delay of two and a half years was held inordinate and inexcusable, and reopening the matter would highly prejudice the respondent, who was no longer a tenant. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the delay in filing the appeal was excusable

Holding

The delay of two and a half years was inordinate and inexcusable; the Tribunal had informed parties judgment would be delivered in the next session and a diligent litigant would have checked the outcome

Reasoning

The judgment was to be delivered in the next session of the Tribunal, which any diligent litigant would have followed. The applicant's failure to check the outcome was lack of diligence, not absence of notice. Waiting until certified proceedings and judgment were obtained before applying for leave further compounded the unreasonable delay, which could not be attributed to good and sufficient cause.

p. 4
02

Whether the respondent would be prejudiced by the extension

Holding

The respondent, who is no longer a tenant and no longer interested in the premises, would be highly prejudiced by being required to defend the appeal

Reasoning

The reference was dismissed in 2009 and the respondent had since left the suit premises and lost interest in the outcome. Requiring it to incur costs defending an appeal over a terminated tenancy two and a half years later would amount to real prejudice, weighing against the exercise of discretion in the applicant's favour.

p. 5

Legal principles established

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  • A litigant who fails to follow up the outcome of its case when judgment was to be delivered in the next session cannot claim the judgment was delivered without notice
  • Extension of time is discretionary, considering length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent
  • The factors for extension of time are not exhaustive and the court may consider any other relevant factors

Court orders

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  1. 1.The application dated 13th March, 2012 seeking leave to file an appeal out of time is dismissed
  2. 2.Costs of the application to the respondent
On appeal from
Business Premises Rent Tribunal
Nyeri BPRT case No. 39 of 2007
Jurisdiction invoked
Inherent power to enlarge time / leave to appeal out of time against BPRT judgment (Cap 301 regime; Court of Appeal Rule 4 principles applied by analogy)

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, "E.K Wachira & Sons K Ltd v Kagondu & Mukunya Advocates [2015] KEELC 130 (KLR)", Case Analysis (2015). null (not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/130/eng@2015-10-08

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