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ELCPartially AllowedMiscellaneous Application (Notice of Motion dated 2nd October 2021)· [2021] KEELC 614 (KLR)

Agnes Nyambura Munga t/a Unisex Aero Salon v Convest Holdings Limited [2021] KEELC 614 (KLR)

Environment and Land Court
30 November 2021
3,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Nairobi court allowed a late appeal against a rent tribunal decision but refused to halt the landlord's repossession because the tenant had already vacated.

What this practically means

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Executive summary

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This is a ruling by M.D. Mwangi J of the High Court at Nairobi on a Notice of Motion dated 2nd October 2021 by Agnes Nyambura Munga, the appellant before the Business Premises Rent Tribunal in Tribunal Case No. 544 of 2019. She sought extension of time to file a memorandum and record of appeal out of time against the Tribunal's ruling of 30th July 2021 delivered by Hon. Gakuhi Chege, Vice Chair, plus a stay of that ruling and its execution pending appeal. The Respondent landlord opposed, contending the delay was unexplained, that the applicant had ceased to be a tenant and vacated the premises, and that it was the landlord suffering loss of rental income. The court framed three issues. First, on the applicant's objection that the Respondent's replying affidavit sworn by director Haren Patel was fatally defective for want of a board resolution, the court, following Peter Onyango Onyiego v Kenya Ports Authority, overruled the objection, holding that only verifying affidavits must be sworn by the party and that any person possessed of the facts may swear other affidavits for a corporation. Second, on extension of time, applying the settled principles in Salat, Paul Musili Wambua and Jane Waceke Kori, the court found the 21-day delay not inordinate and reasonably explained by the Tribunal's uncommunicated change of the ruling date, found the appeal arguable, and allowed prayer 2 only, extending time by 14 days; prayers 3, 4 and 5 were refused as unnecessary or premature, the appeal to be filed in a new civil appeal file and admitted under Section 79B. Third, stay of execution was refused because the applicant was no longer a tenant and thus could show no substantial loss. Costs were ordered to abide the intended appeal. The application dated 2nd October 2021 was allowed in terms of prayer 2 only.

Key legal issues

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01

Defect of replying affidavit sworn by a director without board resolution

Holding

The objection was overruled; the affidavit was valid.

Reasoning

Following Peter Onyango Onyiego v Kenya Ports Authority, the court held that only verifying affidavits must be sworn by the party; other affidavits may be sworn by any person possessed of the facts. The deponent, a director, was competent, and the absence of a board resolution is at worst an irregularity curable under Order 18 Rule 7.

p. 4
02

Extension of time to file appeal out of time

Holding

Granted; the 21-day delay was not inordinate and was reasonably explained by the Tribunal's uncommunicated change of ruling date.

Reasoning

Applying the settled four principles, the court found the delay short and explained, an arguable appeal evidenced by the draft memorandum, and no prejudice to the Respondent who had already repossessed the premises. The court invoked the overriding objective and justice without undue regard to procedural technicalities.

p. 4
03

Stay of execution of the Tribunal ruling pending appeal

Holding

Refused; no substantial loss demonstrated.

Reasoning

Under Order 42 Rule 6(2) and the Halal preconditions, the applicant must show substantial loss. The Respondent deponed, unchallenged, that the Applicant had ceased to be a tenant and vacated the premises; the event the stay sought to prevent had already occurred, so the court would be acting in vain.

p. 5

Legal principles established

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  • Affidavits, save for verifying affidavits, may be sworn on behalf of a corporation by anybody possessed of the facts deponed on; failure to annex a board resolution is an irregularity, not a nullity.
  • The matters considered on an extension-of-time application are length of delay, reason for delay, chances of the appeal succeeding, and degree of prejudice to the respondent.
  • Preconditions for stay of execution pending appeal: sufficient cause, substantial loss, security, and application made without unreasonable delay.

Court orders

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  1. 1.Extension of time by 14 days within which the Applicant should have filed her intended Memorandum of Appeal (prayer 2 only).
  2. 2.Prayers 3 and 4 (deeming the draft Memorandum and Record of Appeal as filed) found unnecessary; the appeal to be filed in a new civil appeal file, not the Misc. Application file.
  3. 3.Prayer 5 (appeal set down for directions within 30 days) refused; the appeal must first be admitted under Section 79B of the Civil Procedure Act.
  4. 4.Prayers 6 and 7 (stay of ruling and stay of execution of the Tribunal's orders dated 30th July 2021) refused.
  5. 5.Costs of the Application shall abide the intended appeal.

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301Section 15(1) and (4)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63e, 79, 79G, 79B
  • Civil Procedure RulesOrder 42 Rules 6(1), 6(2) & 6(6); Order 51; Order 9 Rule 2(c); Order 18 Rule 7

Cases cited (11)

  • Harleys Limited v Ripples Pharmaceuticals Limited & Another
    (2015) eKLR, Nairobi Civil Case 118 of 2015
  • Vishva Stone Suppliers Company Limited v RSR Stone Limited
    (2020) eKLR, Nairobi Civil Application 55 of 2020
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    (2014) eKLR; Supreme Court application 16/2014
  • Masisi Mwita v Damaris Wanjiku Njeri
    (2016) eKLR
  • Halal & Another v Thorntorn & Turpin Ltd
    (1990) eKLR
  • Peter Adams Ludavaa v HFCK Ltd
    (2021) eKLR
  • Peter Onyango Onyiego v Kenya Ports Authority
    (2004) eKLR; Mombasa HCCC 496/1995
  • Ajiwa Shanji Ltd v KENHA & Another
    (2018) eKLR
  • Diplack Kenya Ltd v William Muthama Kitinyi
    (2018) eKLR
  • Paul Musili Wambua v Attorney General & 2 others
    (2015) eKLR
  • Jane Waceke Kori v John Githui Kori
    (2021) eKLR
On appeal from
Business Premises Rent Tribunal at Nairobi
Tribunal Case No. 544 of 2019
Jurisdiction invoked
Section 15(1) and (4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301; Sections 79G and 3A of the Civil Procedure Act; Order 42 Rule 6 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, "Agnes Nyambura Munga t/a Unisex Aero Salon v Convest Holdings Limited [2021] KEELC 614 (KLR)", Case Analysis (2021). Miscellaneous Application (Notice of Motion dated 2nd October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/614/eng@2021-11-30

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