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ELCAllowed· [2017] KEELC 1159 (KLR)

Mansoft Limited & 2 others v Mutuku John Mutinga [2017] KEELC 1159 (KLR)

Environment and Land Court (Court deciding appeal from the Business Premises Rent Tribunal)
9 October 2017
896 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a rent appeal document that was never part of the original Tribunal record, confirming new evidence can be removed on appeal.

What this practically means

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Executive summary

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This is a ruling by K. Bor, J of the Environment and Land Court at Nairobi on an application dated 12/5/2017 by the Appellants, who had appealed to this court against a judgment of the Chairperson of the Business Premises Rent Tribunal, Nairobi, delivered in Tribunal Cases numbers 286, 287 and 294 of 2011. By an order of 26/4/2017 the court had admitted a supplementary record of appeal dated 25/4/2017, which contained a receipt dated 28/9/2012 bearing serial number 091348 said to evidence payment of valuation fees by the Respondent landlord. The Appellants sought review of that order, contending that the receipt did not form part of the BPRT record, that the supplementary record introduced new documentary evidence, and that its filing was marred by inordinate delay and would seriously prejudice them since their central contention on appeal is that the Respondent never filed his valuation report. The Respondent opposed, asserting the report had been filed and paid for before the Tribunal's judgment and that no prejudice would ensue. The court examined paragraph 13 of the BPRT judgment, which recorded that the landlord's valuation report had not been filed and that the fees had not been paid, and found it had been misdirected when it admitted the supplementary record. Invoking Order 45 of the Civil Procedure Rules, the court allowed the application, reviewed and set aside the order of 26/4/2017, struck out the supplementary record of appeal, and awarded the Appellants the costs of the application.

Key legal issues

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01

Whether the court should review its order admitting the supplementary record of appeal

Holding

Yes. The court had been misdirected by the Respondent into believing the valuation fees receipt formed part of the BPRT record, whereas the Tribunal's own judgment recorded that the report had not been filed and the fees unpaid. The application was allowed and the supplementary record struck out.

Reasoning

The Tribunal's judgment at paragraph 13 expressly stated that the landlord's valuation report had not been filed and that unless valuation fees were paid the report could not be deemed filed. This contradicted the Respondent's affidavit claim that the report had been paid for and filed before judgment. The receipt dated 28/9/2012 therefore constituted new documentary evidence not part of the BPRT record, admitted under a mistake, and its retention would prejudice the Appellants whose main contention on appeal rests on the report's absence.

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02

Whether the receipt constituted new evidence not before the BPRT

Holding

Yes. The receipt dated 28/9/2012 bearing serial number 091348 did not form part of the record before the BPRT.

Reasoning

The Appellants deponed that the receipt does not exist in the BPRT record, and the BPRT's own judgment of 24/5/2013 recorded that the valuation report had not been filed because the fees were unpaid. That contemporaneous finding by the Tribunal outweighed the Respondent's assertion that the report had been filed and paid for, confirming that the receipt was new evidence introduced on appeal.

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Legal principles established

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  • A court may review its own orders on account of a mistake or error apparent on the face of the record or for other sufficient reason.
  • Where a tribunal's own judgment confirms that a valuation report had not been filed and the requisite fees not paid, documents introduced on appeal suggesting otherwise constitute new evidence that may be struck out to avoid prejudice.

Court orders

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  1. 1.The court reviewed and set aside its order made on 26/4/2017 admitting the supplementary record of appeal
  2. 2.The supplementary record of appeal is struck out
  3. 3.The Appellants were awarded the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Civil Procedure RulesOrder 45
On appeal from
Business Premises Rent Tribunal, Nairobi (Chairperson, Honourable Mrs. D. Mwachache)
Tribunal Cases numbers 286, 287 and 294 of 2011
Jurisdiction invoked
Appellate jurisdiction over the Business Premises Rent Tribunal decision (statutory appeal); review jurisdiction invoked under Order 45 of the Civil Procedure Rules

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, "Mansoft Limited & 2 others v Mutuku John Mutinga [2017] KEELC 1159 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1159/eng@2017-10-09

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