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ELCPartially AllowedEldoret BPRT Appeals (from BPRT Case Nos. 82, 83, 84, 85, 86, 87 and 88 of 2016)· [2018] KEELC 4451 (KLR)

Salim Mbarak t/a Bismilahi Lengut Hotel & 6 others v Hasham Lalji Properties Limited [2018] KEELC 4451 (KLR)

Environment and Land Court
26 January 2018
1,490 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court gave seven Eldoret tenants more time to appeal a rent hike, but only after each paid three months' rent as security.

What this practically means

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Executive summary

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The applicants, tenants of shops on Plot No. Eldoret Municipality Block 7/69 along Oloo Street, Eldoret (Hasham Lalji Building), sought extension of time to appeal and stay of execution against a consolidated judgment of the Business Premises Tribunal (Eldoret BPRT Case Nos. 82, 83, 84, 85, 86, 87 and 88 of 2016) delivered on 4.11.2016 by Honourable Mbichi Mboroki, which increased rent by Ksh. 28,232/= backdated to 1.1.2016, creating substantial arrears for each tenant. They claimed they were never notified of the judgment date and became aware of it on 5.12.2016, after the statutory 30-day appeal period under section 15, Cap. 301 had lapsed. The respondent, through its Legal Officer Martin Bett, opposed, contending the applicants knew the judgment date, that the appeal was frivolous, that no substantial loss was shown, and that as landlord he was entitled to the fruits of his judgment. The court found judgment was entered in the absence of the applicants' advocate and without evidence of notice of the judgment date, so the delay to 5.12.2016 was accounted for; the memorandum of appeal filed 17 days later was within reasonable time. Substantial loss was demonstrated. However, the applicants were silent on security. The court granted extension of time to file the appeal within 30 days, stayed execution pending appeal, and ordered each applicant to deposit in court, or in the alternative furnish, security equivalent to three months' rent, failing which execution would issue.

Key legal issues

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01

Whether the delay in filing the appeal was explained and reasonable

Holding

The court found that the absence of notice of the judgment date accounted for the period from 4.11.2016 to 5.12.2016, and the remaining 17 days was within reasonable time

Reasoning

Judgment was entered in the presence of the respondent's advocate but absent the applicants' advocate, with no evidence parties were notified of the judgment date. The delay until 5.12.2016 was thus accounted for. The memorandum of appeal was filed 17 days later, less than the 30 days stipulated, so the appeal was filed within reasonable time after discovery of the judgment, and the right to be heard prevailed.

p. 2
02

Whether the applicants demonstrated substantial loss

Holding

The court found the applicants demonstrated they would suffer substantial loss and economic ruin if execution was levied

Reasoning

The Tribunal had increased and backdated rent, creating large immediate arrears which the applicants said were punitive and exposed their businesses to distress and economic ruin if execution was levied. The court accepted this as demonstrating substantial loss, though it noted the applicants offered no security and imposed one as a condition of the stay.

p. 3
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Security for the due performance of the decree

Holding

The court ordered each applicant to deposit in court or furnish security equivalent to three months' rent, failing which execution to issue

Reasoning

The court noted the applicants were silent on security, an established principle for stay of execution. It therefore granted the stay but conditioned it on each applicant depositing in court an equivalent of three months' rent, or in the alternative furnishing equivalent security, with execution to issue on default.

p. 3

Legal principles established

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  • The right to be heard is sacrosanct, cardinal and constitutionally protected and cannot be wished away
  • The principles for grant of stay of execution pending appeal are that the application be made without unreasonable delay, that substantial loss be shown, and that security be given

Court orders

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  1. 1.Extension of time granted within which to appeal from Eldoret BPRT Case Nos. 82, 83, 84, 85, 86, 87 and 88 of 2016 (judgment delivered 4.11.2016), the appeal to be filed within the next 30 days
  2. 2.Stay of execution of the decree issued for the said judgment pending the hearing of the appeal
  3. 3.Each applicant to deposit in court an equivalent of three months' rent, failure of which execution to issue
  4. 4.In the alternative, each applicant to furnish security equivalent to three months' rent, failure of which execution to issue

Authorities

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Legislation

  • Business Premises Rent Act (Cap. 301)Section 15(1)
  • Constitution of Kenya2010 Constitution (right to be heard)
  • Civil Procedure Act (stay of execution principles)principles for stay pending appeal
On appeal from
Business Premises Tribunal
Eldoret BPRT Case Nos. 82, 83, 84, 85, 86, 87 and 88 of 2016
Jurisdiction invoked
Section 15, Cap 301 (Business Premises Rent Act) - appeal to the Environment & Land Court with power to extend the 30-day period

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, "Salim Mbarak t/a Bismilahi Lengut Hotel & 6 others v Hasham Lalji Properties Limited [2018] KEELC 4451 (KLR)", Case Analysis (2018). Eldoret BPRT Appeals (from BPRT Case Nos. 82, 83, 84, 85, 86, 87 and 88 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4451/eng@2018-01-26

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