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ELCPartially AllowedNot stated on the face of the judgment (Thika ELRC/High Court; intended appeal from BPRT Case No. 73 of 2016, Kiambu)· [2021] KEELC 3765 (KLR)

James Mwaura Karobia t/a Daylight General Canteen v Julius Mwangi Kuria t/a Nationwide Distributors; Post Master General Postal Corporation of Kenya (Interested Party) [2021] KEELC 3765 (KLR)

High Court of Kenya at Thika
8 April 2021
3,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's High Court let a tenant appeal a rent tribunal ruling late and blocked rent seizure, provided he pays security and files his appeal quickly.

What this practically means

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Executive summary

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The applicant, James Mwaura Karobia, sought leave to appeal out of time and a stay of execution against a ruling of the Chairman of the Business Premises Rent Tribunal (Mbichi Mboroki) in Tribunal Case No. 73 of 2016 (Kiambu), delivered on 12th June 2020 without notice to him. The tribunal had dismissed his injunction application and allowed the respondent, Dola Indidis, to levy distress for rent of about Kshs. 2,370,000/= and recover costs. The applicant explained that the ruling's delivery date shifted several times, he only learnt of it on 18th August 2020 when served, and he filed the application on 24th August 2020. The respondent opposed the application as incompetent and an abuse of process, citing a prior dismissed application in Thika CMCC No. 866 of 2018. The interested party, the registered owner of the suit property, supported the application, contending it had terminated the respondent's licence and entered a fresh lease with the applicant. Applying section 79G of the Civil Procedure Act and the Salat principles, the court found no inordinate delay and a satisfactory explanation, and granted leave. Applying Order 42 Rule 6(2) criteria, it found substantial loss and potential nugatoriness of the appeal if distress proceeded, and granted stay conditional on security of Kshs. 30,000/=. The applicant was to file the memorandum of appeal within 14 days and record of appeal within 30 days; costs abide the appeal, and the orders lapse on default.

Key legal issues

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01

Leave to appeal out of time

Holding

Granted; the applicant explained the delay satisfactorily as the ruling was delivered without notice and he filed within days of learning of it

Reasoning

The ruling was delivered on 12th June 2020 without notice to the applicant, who learnt of it on 18th August 2020 when served with a letter, and filed the application on 24th August 2020. The contention that the ruling was delivered in the applicant's absence was unrebutted, so there was no inordinate delay and the Salat discretion was properly exercised.

p. 3
02

Stay of execution pending appeal

Holding

Granted subject to security of Kshs. 30,000/=; substantial loss and nugatory-appeal shown, delay absent, and the respondent would suffer no prejudice

Reasoning

The tribunal had allowed the respondent to levy distress for rent; if the appeal succeeded, execution would have caused substantial loss and rendered the appeal nugatory. The applicant offered security of Kshs. 30,000/=, which was unrebutted, and the court balanced the interests of justice rather than protecting the applicant at the expense of the successful party.

p. 4

Legal principles established

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  • Leave to appeal out of time requires a satisfactory explanation for the delay and absence of inordinate delay
  • Substantial loss and nugatory-appeal considerations justify stay of execution pending appeal

Court orders

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  1. 1.Leave granted to appeal out of time against the Ruling of the Chairman, BPRT, in Tribunal Case No. 73 of 2016 (Kiambu) delivered on 12th June 2020
  2. 2.Stay of execution in Tribunal Case No. 73 of 2016 (Kiambu) granted pending hearing and determination of the intended appeal
  3. 3.Applicant to deposit Kshs. 30,000/= as security for costs within 30 days
  4. 4.Applicant to file Memorandum of Appeal within 14 days and Record of Appeal within 30 days
  5. 5.Costs of the application to abide the outcome of the appeal
  6. 6.In default, the orders issued to lapse automatically

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 42 Rule 6(2) and Order 42 Rule 6
  • Civil Procedure RulesOrder 21 rule 1
  • Appellate Jurisdiction RulesRule 4 (as referenced in Stanley Kahoro Mwangi quote)

Cases cited (7)

  • Nicholas Kiptoo Arap Korir Salat vs The Independent Electoral And Boundaries Commission & 7 Others
    [2014] eKLR
  • Stanley Kahoro Mwangi & 2 others v. Kanyamwi Trading Company Limited
    (2015) eKLR
  • JMM vs PM
    [2018] eKLR
  • Masisi Mwita vs Damaris Wanjiku Njeri
    Civil Appeal No. 107 of 2015, (2016) eKLR
  • Halal & Another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
  • Canvass Manufacturers Ltd vs Stephen Reuben Karunditu
    Civil Application No. 158 of 1994, (1994) LLR 4853
On appeal from
Business Premises Rent Tribunal (Kiambu)
Tribunal Case No. 73 of 2016
Jurisdiction invoked
Section 79G of the Civil Procedure Act and Order 42 Rule 6(2) of the Civil Procedure Rules (inherent discretion to extend time and stay execution)

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, "James Mwaura Karobia t/a Daylight General Canteen v Julius Mwangi Kuria t/a Nationwide Distributors; Post Master General Postal Corporation of Kenya (Interested Party) [2021] KEELC 3765 (KLR)", Case Analysis (2021). Not stated on the face of the judgment (Thika ELRC/High Court; intended appeal from BPRT Case No. 73 of 2016, Kiambu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3765/eng@2021-04-08

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