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ELCAllowedMombasa ELC Civil Appeal (No. as per Record of Appeal dated 11th December 2018; application dated 5th February 2019)· [2019] KEELC 2470 (KLR)

Hellen Kay Hartley v Adventure Adrenalin Africa Limited [2019] KEELC 2470 (KLR)

Environment and Land Court
9 July 2019
CYC.K. Yano
1,856 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a Notice of Motion dated 5th February 2019 by the Appellant, Hellen Kay Hartley, seeking extension of time to file an appeal out of time against a ruling of the Business Premises Rent Tribunal delivered on 10th November 2017 dismissing her Preliminary Objection on jurisdiction in Tribunal Case No. 70 of 2017, deeming the Record of Appeal filed on 13th December 2018 as filed on time, and consolidating the appeal with Mombasa ELC Civil Appeal No. 28 of 2018 arising from the Tribunal's substantive judgment of 16th November 2018. The Respondent, Adventure Adrenalin Africa Limited, opposed, arguing that the delay of over a year was unexplained, the appeal was defective, and consolidation could not issue over a non-existent appeal. Counsel cited the familiar four-factor test from Mwangi v Kenya Airways Ltd. C.K. Yano J framed three issues and applied the proviso to Section 79G of the Civil Procedure Act, adopting Emukule J's interpretation in Gerald M'Limbine v Joseph Kangangi that an applicant may file the appeal while simultaneously seeking leave to admit it out of time. The court found the delay of one year and three months satisfactorily explained by the Applicant's election to have the Reference determined on its merits first, found no prejudice not compensable by costs, and granted leave. Applying Stumblers v Potgeiter, the court held consolidation proper as both appeals shared the same subject matter, parties and issues. The appeal was admitted out of time, the appeals consolidated with ELC Civil Appeal No. 28 of 2018 as the lead file, the Deputy Registrar directed to call for the lower court record, and costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Extension of time to file appeal under Section 79G Civil Procedure Act

Holding

Leave granted; the delay of one year and three months was satisfactorily explained and caused no compensable prejudice.

Reasoning

The Applicant explained that after the Tribunal dismissed her Preliminary Obfection on jurisdiction on 10 November 2017, she elected to have the Reference determined on its merits before appealing, which occurred on 16 November 2018. The court accepted this explanation as logical and rational, found no prejudice not compensable by costs, and noted the Record of Appeal was already filed.

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02

Consolidation of appeals

Holding

Consolidation granted because both appeals arise from the same subject matter, the parties and issues are the same, and consolidation furthers expeditious disposal and case management.

Reasoning

Applying Stumblers v Potgeiter, the court found common questions of law and fact, identical parties and issues. The purpose of consolidation is to save costs, time and effort by treating several actions as one, furthering expeditious disposal and proper case management.

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Legal principles established

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  • An appeal filed out of time may be validated by an application for leave to admit it out of the statutory period, and the applicant may file the appeal simultaneously with seeking leave.
  • The factors for extension of time (length of delay, reasons, chances of success, prejudice) are not exhaustive and the court exercises its discretion considering all relevant factors.
  • Consolidation is appropriate where there are common questions of law or fact and serves to save costs, time and effort.

Court orders

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  1. 1.The appeal herein is hereby admitted out of time and deemed to be duly filed and served within the stipulated statutory period.
  2. 2.This case and Mombasa ELC Civil Appeal No. 28 of 2018 are hereby ordered consolidated for purposes of being heard and determined together.
  3. 3.ELC Civil Appeal No. 28 of 2018 shall be the lead file for purposes of filing any further pleadings and recording of proceedings.
  4. 4.The Deputy Registrar is directed to call for submission of the lower court record for admissions of this appeal to hearing expeditiously.
  5. 5.Costs of this application shall abide the outcome of the Appeal.

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 15(1)
  • Civil Procedure ActSections 1A, 3A, 79G
  • Civil Procedure RulesOrder 42 Rule 32
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (9)

  • APA Insurance Limited v Michael Kinyanjui Mutwiri
    (2016) eKLR
  • Mwangi v Kenya Airways Ltd
  • Gerald M'Limbine v Joseph Kangangi
    (2009) eKLR
  • Asma Ali Mohamed v Fatime Mwinyi Juma
    (2014) eKLR
  • Michael Ngondi Karani v James Muchiri Nyaga
    (2015) eKLR
  • E.K. Wachira & Sons Ltd v Kagondu & Mukunya Advocates
    (2015) eKLR
  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application
  • Fakir Mohamed v Joseph Mugambi & 2 Others
    (2005) eKLR
  • Stumblers & Another v Potgeiter
    (1970) EA 323
On appeal from
Business Premises Rent Tribunal
Tribunal Case No. 70 of 2017
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

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, "Hellen Kay Hartley v Adventure Adrenalin Africa Limited [2019] KEELC 2470 (KLR)", Case Analysis (2019). Mombasa ELC Civil Appeal (No. as per Record of Appeal dated 11th December 2018; application dated 5th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2470/eng@2019-07-09

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