Evans Tuma Kalume v Moses Masivai Barasa [2019] KEELC 4945 (KLR)
The bottom line
#Kenya's Environment and Land Court let a tenant appeal a rent tribunal ruling late because illness explained the one-week delay, and paused the orders on payment conditions.
What this practically means
#Executive summary
#Key legal issues
#Whether there was sufficient reason to extend the 30-day statutory period for filing an appeal under Section 15 of Cap 301
The Court was satisfied that the Applicant's indisposition and prior in-person status constituted sufficient reason for the delay of about one week.
The impugned decision was delivered on 18th May 2018 and the Memorandum of Appeal was filed on 26th June 2018, about a week late. The Applicant explained that he had acted in person in the lower court and was indisposed at the time of the ruling, and needed time to raise resources to instruct an advocate. The Court found this a sufficient reason for the delay and exercised its discretion under the proviso to Section 15(1).
Whether the intended appeal was arguable and whether the Respondent would be prejudiced
The Court found the appeal arguable because the Applicant contended that the Respondent was not his landlord at the suit premises.
The Applicant contended that the Respondent was not his landlord at the suit premises and that he paid rent to a different person. The Court accepted that this raised an arguable appeal and that the Respondent would suffer no prejudice if the appeal were heard on merits. The Court also noted the Tribunal's ex parte orders required the Applicant to vacate immediately, which would render the appeal nugatory if effected.
Legal principles established
#- The decision whether or not to extend time for appealing is discretionary, taking into account the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
Court orders
#- 1.Leave granted to appeal out of time against the Ruling and Orders of the Tribunal delivered on 18th May 2018, and the Memorandum of Appeal dated 26th June 2018 deemed duly filed and served
- 2.Stay of execution of the entire Ruling and Orders of the Tribunal pending the hearing and determination of the appeal, on condition that the applicant deposits the decretal sum of Kshs 35,000/- in Court within 45 days
- 3.In default of depositing the decretal sum, the orders of stay shall lapse forthwith
- 4.Costs of the application to be in the cause
- On appeal from
- Business Premises and Rent Tribunal
- Business Premises and Rent Tribunal Case No. 35 of 2018
- Jurisdiction invoked
- Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Tuma Kalume v Moses Masivai Barasa [2019] KEELC 4945 (KLR)", Case Analysis (2019). Business Premises and Rent Tribunal Case No. 35 of 2018 (appeal therefrom; Notice of Motion dated 26th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4945/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.