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ELCDismissedELCA E081 OF 2021· [2021] KEELC 748 (KLR)

Flamingo Towers Limited & another v Homeland Media Group Ltd [2021] KEELC 748 (KLR)

High Court of Kenya
29 November 2021
MOMOGENI
2,373 words in judgment
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The bottom line

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The High Court dismissed landlords' bid for rent and a purchase-price deposit pending appeal because they failed to file a proper memorandum of appeal.

What this practically means

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Executive summary

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This ruling by Mogeni J of the High Court at Nairobi, dated 29 November 2021, dealt with a Notice of Motion dated 12/10/21 filed by two appellants in appeal ELCA E081 of 2021, an appeal from the Chief Magistrate's Court (CMCC No. 4077 of 2020). The appellants - owner and property manager of Flamingo Towers, Upper Hill - sought orders compelling the respondent to pay rent of Kshs. 25,956,424.50 and service charge of Kshs. 535,624, or in the alternative to deposit the entire balance of the purchase price in an escrow account, pending hearing of the appeal. They contended the respondent was defaulting on rent while shielded by injunctive orders of 25/11/2020, and that the subordinate court lacked pecuniary jurisdiction over the purchase-price dispute. The respondent opposed, arguing the application was baseless, that no judgment existed in the applicants' favour, that no defence or counterclaim had been filed, and that no valid lease existed. The court framed a single issue: whether the motion was merited. It held that appeals from the subordinate court require a memorandum of appeal, that the appeal is incomplete without the order or decree appealed against, and that the applicants failed to annex a draft memorandum of appeal - a mandatory requirement per the Salat decisions. Citing Lalji Bhimji Shangani, it held procedural failure could not be rescued by Article 159(2)(d). The court found the motion devoid of material facts and a request for a fishing expedition, and dismissed it.

Key legal issues

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01

Whether the motion seeking rent/deposit orders pending appeal was merited

Holding

The motion was not merited; it was devoid of material facts identifying the decision appealed against and lacked a draft memorandum of appeal, a mandatory requirement.

Reasoning

The court examined Order 42 rules 2 and 13(4) of the Civil Procedure Rules and sections 78 and 79 of the Civil Procedure Act, concluding that without the order or decree appealed against the appeal is incomplete. The supporting affidavit only hinted that an application to set aside orders of 25/11/2020 was dismissed on 24/09/2021. Without a draft memorandum of appeal the court was being asked to conduct a fishing expedition. Applying Salat and Lalji Bhimji Shangani, procedural failure could not be saved by Article 159(2)(d).

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02

Procedure for appeals from the subordinate court to the High Court

Holding

Appeals to the High Court do not require a notice of appeal; they are instituted by memorandum of appeal, with the record of appeal (including the decree or order appealed against) filed later before directions under Order 42 Rule 13.

Reasoning

Sections 78 and 79 of the Civil Procedure Act and Order 42 provide an elaborate framework distinct from Court of Appeal procedure. Order 42 rule 2 permits filing of the memorandum before the certified decree is available, but the appeal is incomplete without it; Order 42 rule 13(4) requires the memorandum, pleadings and notes before directions. A draft memorandum of appeal is a mandatory ingredient of a motion of this nature.

p. 3

Legal principles established

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  • An appellant seeking orders pending appeal must disclose the decision appealed against and annex a draft memorandum of appeal; without the order or decree appealed against, the appeal is incomplete.
  • Failure to follow laid-down procedure cannot be excused under Article 159(2)(d) of the Constitution or the overriding objective.

Court orders

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  1. 1.The Notice of Motion dated 12/10/21 is dismissed
  2. 2.Costs of the application to the Appellant/applicant (as worded in the judgment)

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 78, 79, 79B, 79G
  • Civil Procedure Rules 2010Order 42 Rules 2, 11, 13, 13(4); Order 51 Rule 1
  • Constitution of Kenya 2010Article 159(2)(d)

Cases cited (4)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 6 Others
    [2013] eKLR
  • Lalji Bhimji Shangani Builders & Contractors vs. City Council of Nairobi
    [2012] eKLR
  • Haron E Ogechi Nyaberi vs British American Insurance Co. Ltd
    [2012] eKLR
On appeal from
Chief Magistrate's Court (subordinate court)
CMCC No. 4077 of 2020
Jurisdiction invoked
Sections 78 and 79 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules 2010 (appeals from the subordinate court to the High Court)

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, "Flamingo Towers Limited & another v Homeland Media Group Ltd [2021] KEELC 748 (KLR)", Case Analysis (2021). ELCA E081 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/748/eng@2021-11-29

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