Agnes Nyambura Munga t/a Unisex Aero Salon v Convest Holdings Limited [2021] KEELC 614 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Defect of replying affidavit sworn by a director without board resolution
The objection was overruled; the affidavit was valid.
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.
Extension of time to file appeal out of time
Granted; the 21-day delay was not inordinate and was reasonably explained by the Tribunal's uncommunicated change of ruling date.
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.
Stay of execution of the Tribunal ruling pending appeal
Refused; no substantial loss demonstrated.
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.
Legal principles established
#- 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
#- 1.Extension of time by 14 days within which the Applicant should have filed her intended Memorandum of Appeal (prayer 2 only).
- 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.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.Prayers 6 and 7 (stay of ruling and stay of execution of the Tribunal's orders dated 30th July 2021) refused.
- 5.Costs of the Application shall abide the intended appeal.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.