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ELCPartially AllowedELC Miscellaneous Application No. E049 of 2021· [2022] KEELC 1406 (KLR)

Smart Connections E.A. Limited & 2 others v Gieto Holdings (K) Limited [2022] KEELC 1406 (KLR)

Environment and Land Court at Meru
16 February 2022
716 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a late appeal over a Covid-19 hospitalisation but refused to stop eviction where tenants proved no loss, offered no security, and delayed.

What this practically means

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Executive summary

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The three tenant applicants moved the Environment and Land Court at Meru by a notice of motion dated 26.11.2021 seeking stay of execution of a ruling delivered on 5.8.2021 in BPRT Meru No. 38 of 2019, and leave to appeal out of time against that ruling, with the draft memorandum of appeal admitted as filed in time. The ruling below had dismissed their injunction application against a proclamation notice and the tribunal ordered them to vacate by 30.11.2021 for rent arrears. On extension of time, the court found the three-and-a-half-month delay sufficiently explained by the hospitalisation of the applicants' managing director with Covid-19, supported by a medical report, and guided by Ivita v Kyumbu, allowed leave (prayers 4, 5 and 6). On stay of execution, the court noted the applicants admitted outstanding rent arrears (of an alleged Kshs. 1,033,673, the balance being unclear despite payments of Kshs. 121,194 and Kshs. 362,582), that they waited until the last day of the notice to vacate to file the application, and that no security was offered. Although the respondent did not oppose and there was no evidence the eviction took place, the court found no substantial loss demonstrated and refused the stay. All other prayers were dismissed; the appeal and record of appeal were to be filed and served within 30 days. Delivered by C.K. Nzili, ELC Judge, on 16 February 2022.

Key legal issues

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01

Leave to appeal out of time

Holding

Leave granted; the three-and-a-half-month delay was sufficiently explained by the managing director's Covid-19 illness and hospitalisation

Reasoning

The ruling sought to be appealed was delivered on 5.8.2021 and the application filed on 30.11.2021. The court accepted a medical report showing the managing director was diagnosed with Covid-19 and hospitalised until discharge on 21.9.2021, holding the reasons sufficient and guided by Ivita v Kyumbu.

p. 1
02

Stay of execution pending appeal

Holding

Refused; no substantial loss shown, no security offered, and the applicants delayed until the last day of the notice to vacate

Reasoning

Although the respondent did not oppose the application and there was no evidence the eviction was carried out, the applicants admitted outstanding rent arrears and delayed in moving to court. Rent payments of Kshs. 121,194 and Kshs. 362,582 were received, and it was unclear what balance remained of the alleged Kshs. 1,033,673 arrears. The court found it would not be in the interest of justice to grant a stay.

p. 2

Legal principles established

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  • To obtain stay of execution an applicant must prove substantial loss, bring the application within reasonable time, and offer security for due performance of the decree
  • For leave to appeal out of time under Section 79G of the Civil Procedure Act, the applicant must demonstrate sufficient cause for the delay and file the application timeously

Court orders

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  1. 1.Leave to appeal out of time granted (prayer 4); draft memorandum of appeal admitted as filed in time (prayers 5 and 6)
  2. 2.The appeal together with the record of appeal to be filed and served within 30 days from the date of the ruling
  3. 3.All other prayers to the application (including stay of execution) dismissed

Authorities

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Legislation

  • Civil Procedure ActSection 79G

Cases cited (4)

  • Ivita –vs- Kyumbu
    [1984] KLR 441
  • Mohamed Salim Bashir –vs- Shami Trading Co. Limited
    [2013] eKLR
  • Haron & Another –vs- Uchumi Services Ltd
    [2012] eKLR
  • Nicholas Kigo Wambugu –vs- Miriam Nyawira Mwaniki
    [2016] eKLR
On appeal from
Business Premises Rent Tribunal (BPRT) Meru
BPRT Meru No. 38 of 2019
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave to appeal out of time); inherent jurisdiction to order stay of 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, "Smart Connections E.A. Limited & 2 others v Gieto Holdings (K) Limited [2022] KEELC 1406 (KLR)", Case Analysis (2022). ELC Miscellaneous Application No. E049 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1406/eng@2022-02-16

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