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ELCDismissedNot stated in the judgment (appeal from Business Premises Rent Tribunal Case No. 435 of 2021)· [2022] KEELC 75 (KLR)

Cause Impact Limited v Trustees & 2 others (Environment and Land Appeal E090 of 2021) [2022] KEELC 75 (KLR)

Environment and Land Court
2 June 2022
4,557 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a tenant's late appeal because it gave no good reason for the delay and hid other court cases.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nairobi, delivered by O. A. Angote, J on 2nd June 2022, determined two competing motions arising from a dispute between a former tenant (the Appellant) and its landlord and managing agent (the Respondents) following proceedings before the Business Premises Rent Tribunal in Case No. 435 of 2021, in which the Tribunal upheld a preliminary objection on jurisdiction and struck out the tenant's case. The Appellant sought leave to appeal out of time against the Tribunal's Ruling of 24th September 2021, deeming of its Memorandum of Appeal, and injunctions restraining the Respondents from disposing of goods distrained for rent. The Respondents sought setting aside of ex-parte interim orders, alleging material non-disclosure. The court identified two issues: whether the threshold for extension of time was met, and whether an injunction pending appeal should issue. Applying the principles in Paul Musili Wambua, County Executive of Kisumu and Vishva Stone Suppliers, the court found the Appellant had not demonstrated any steps taken to secure the signed Ruling, and that the carting away of its goods could not explain the delay since it was able to file a suit in the magistrates' court. It further found that the Appellant concealed that it held parallel interim orders in MCCC/E1145 of 2021, amounting to bad faith and disqualifying it from equitable relief. The Respondents' motion was dismissed as moot, the Appellant's motion dismissed, and the appeal filed without leave was struck out, each with no order as to costs.

Key legal issues

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01

Whether sufficient cause was shown for extending time to appeal under Section 79G of the Civil Procedure Act and Section 15 of the Landlord and Tenant Act

Holding

Leave to appeal out of time was refused because the Appellant failed to demonstrate that it took steps to obtain the signed Ruling and failed to explain how the carting away of its goods prevented timely filing

Reasoning

The court applied the principles in Paul Musili Wambua, County Executive of Kisumu and Vishva Stone Suppliers, requiring the length and reason for delay to be explained. It found no evidence of any request to the Tribunal for the signed Ruling, noted the attachment occurred after the Ruling, and observed that the Appellant had filed a suit in the magistrates' court after the attachment, showing it was not incapacitated. The whole period of delay had to be explained to the court's satisfaction, which was not done.

p. 8
02

Whether the Appellant's non-disclosure of parallel proceedings and interim orders disentitled it to equitable relief

Holding

Yes. The Appellant's failure to disclose that it enjoyed interim injunctive orders from the magistrates' court while obtaining similar orders from this court amounted to bad faith

Reasoning

The court found that parallel proceedings were ongoing in the High Court and the magistrates' court, with the Appellant obtaining similar restraining orders in both. The existence of the magistrates' court interim orders was never disclosed in the present application. Relying on John Njue Nyaga, the court held that equity demands clean hands, and one who conceals material facts is undeserving of discretionary orders.

p. 8
03

Whether the court could grant an injunction pending appeal over the distrained goods

Holding

No. Having declined leave to appeal out of time and struck out the appeal, there was no competent appeal to support an injunction under Order 42 Rule 6(6)

Reasoning

Order 42 Rule 6(6) permits the High Court in appellate jurisdiction to grant temporary injunctions provided the procedure for instituting the appeal has been complied with. Since the appeal was filed out of time without leave and was struck out, the condition precedent was absent. The court held that an injunction or stay cannot issue in a vacuum.

p. 9

Legal principles established

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  • Any delay in filing an appeal must be satisfactorily explained; a plausible and satisfactory explanation is the key that unlocks the court's discretionary power
  • A party seeking discretionary and equitable relief must come to court with clean hands
  • New issues cannot be raised by way of submissions
  • An injunction or stay of execution cannot be granted in a vacuum

Court orders

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  1. 1.The Respondents' Notice of Motion dated 14th January 2022 is dismissed with no orders as to costs as it is moot
  2. 2.The Appellant's application dated 18th November 2021 is dismissed with no order as to costs
  3. 3.The Memorandum of Appeal filed out of time and without leave is struck out with no order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSection 15
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Oaths and Statutory Declarations ActRule 9(a)

Cases cited (13)

  • Kenya Power & Lighting Company Ltd v Rose Anyango & another
    [2020] eKLR
  • Ahmed Musa Ismael v Kumba ole Ntamurua & 4 others
    [2014] eKLR
  • Agatha v Azad & others, Application 11(E020) of 2021 (2022) KESC 1 (KLR)
    (2022) KESC 1 (KLR)
  • Francis A Mbalanya v Cecilia N. Waema
    [2017] eKLR
  • Master Fabricators Limited vs Patrick Omondi Ndonga
    [2014] eKLR
  • Bora Capital Limited vs Jane Njeri Munyi
    [2018] eKLR
  • Paul Musili Wambua vs Attorney General & 2 Others
    [2015] eKLR
  • County Executive of Kisumu v County Government of Kisumu & others
    [2017] eKLR
  • Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, Application No. 16 of 2014
    [2014] eKLR
  • Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited
  • Daphne Parry v Murray Alexander Carson
    [1963] EA 546
  • Republic vs Chairman Public Procurement Administrative Review Board & another Ex parte Zapkass Consulting and Training Limited & another
    [2014]
  • John Njue Nyaga vs Nicholas Njiru Nyaga & another
    (2013) eKLR
On appeal from
Business Premises Rent Tribunal
Tribunal Case No. 435 of 2021
Jurisdiction invoked
Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act; Sections 79G and 95 of the Civil Procedure Act; Order 50 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cause Impact Limited v Trustees & 2 others (Environment and Land Appeal E090 of 2021) [2022] KEELC 75 (KLR)", Case Analysis (2022). Not stated in the judgment (appeal from Business Premises Rent Tribunal Case No. 435 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/75/eng@2022-06-02

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