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ELCPartially AllowedApplication dated 14 September 2020 (suit filed 12 July 2012)· [2021] KEELC 4479 (KLR)

Milly Glass Works Limited v Kenya Railways Corporation & another [2021] KEELC 4479 (KLR)

Environment and Land Court of Kenya
28 January 2021
MSMunyao Sila
2,130 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave a company more time to appeal after a Covid-19 bereavement, but refused to pause the case because no real harm was shown.

What this practically means

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Executive summary

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This is a ruling by Munyao Sila J of the Environment and Land Court at Mombasa on an application dated 14 September 2020 by the plaintiff, Tamu Glassworks Limited, seeking extension of time to file a Notice of Appeal against the court's ruling of 24 July 2020 (which had dismissed its application for leave to amend the plaint to add a claim for refund of increased rent) and a stay of proceedings pending that appeal. The underlying suit concerns a lease over Mombasa/Block XLVIII/134 granted by Kenya Railways Corporation, and disputes the lessor's 2013 increase of rent from KShs 146,000 to KShs 10,200,000 per annum. The applicant argued its right to increase rent fell due on 1 January 2007 and was waived; the 2013 increase was therefore illegal. On extension of time, counsel explained the delay by a family bereavement from Covid-19; the court accepted this as good reason but declined to validate the late Notice, instead directing that a proper Notice of Appeal be filed and served within seven days. On stay of proceedings, the court applied the substantial-loss principle in Order 42 Rule 6(2), holding that the applicant's right to claim excess rent would survive regardless of the appeal's outcome, and declined the stay. Costs: no order. Time extended but stay refused - partially allowed.

Key legal issues

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01

Extension of time for filing Notice of Appeal

Holding

Good reason shown (counsel's bereavement from Covid-19); time extended but late Notice not validated - a proper Notice to be filed within 7 days

Reasoning

Counsel explained that his family contracted Covid-19, one member died, and in his haste he forgot to give instructions to file the prepared Notice of Appeal. The court found this a genuine reason and sympathetic. Rather than validate the late-filed Notice, the court directed filing of a fresh Notice within seven days, holding that where a document is filed out of time the court may either extend time to allow it or direct a new filing.

p. 2
02

Stay of proceedings pending appeal

Holding

Refused - no substantial loss demonstrated

Reasoning

The applicant sought to amend the plaint to add a refund claim for excess rent paid. The court reasoned that whether or not the suit proceeded, the applicant's right to claim excess rent would remain intact: if it succeeded at trial it would recover the difference between old and new rent, and even if the appeal succeeded, the refund claim could be pursued in a subsequent suit. Absent substantial loss, a stay would serve no purpose.

p. 3

Legal principles established

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  • A document filed out of time remains null and void unless the court extends time; it is immaterial whether the document was filed or not - the question is whether time will be extended
  • The principles in Order 42 Rule 6(2) on substantial loss apply to stay of proceedings applications

Court orders

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  1. 1.Time extended for lodging the Notice of Appeal
  2. 2.A proper Notice of Appeal to be filed and served within Seven (7) Days of the ruling
  3. 3.Stay of proceedings declined
  4. 4.No order as to costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 43 Rule 1(1)(f)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Court of Appeal Rules, 2010Rule 75(2)
  • Appellate Jurisdiction Act, Cap 9Section 7
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act, Cap 9, Laws of Kenya (power of the High Court to extend time)

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, "Milly Glass Works Limited v Kenya Railways Corporation & another [2021] KEELC 4479 (KLR)", Case Analysis (2021). Application dated 14 September 2020 (suit filed 12 July 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4479/eng@2021-01-28

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