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ELCStruck OutNot stated in judgment (Memorandum of Appeal against Ruling of Rent Restriction Tribunal dated 21st September 2016)· [2022] KEELC 1537 (KLR)

Board of Trustees Kiambu Institute of Science & Technology v Nicholas Kinyua & 50 others [2022] KEELC 1537 (KLR)

Environment and Land Court
10 February 2022
OMOguttu Mboya
4,372 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out an appeal filed 15 days late, even though neither lawyer raised the delay.

What this practically means

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Executive summary

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The Appellant, an institution whose residential premises were occupied by teachers and non-teaching staff, appealed to the Environment and Land Court against a ruling of the Rent Restriction Tribunal delivered on 21st September 2016. The Tribunal had declined to disturb existing letting rates after considering three valuation reports (its own valuer's and those of the parties' independent valuers), holding the premises were institutional and not subject to open market rates. The appeal raised ten grounds, canvassed by written submissions, organised into three issues: competence of the appeal, exemption of institutional houses from the Tribunal's jurisdiction, and the Tribunal's adoption of the Respondents' valuation report while disregarding its own valuer's. The court found, sua sponte, that the appeal was filed on 12th October 2016, beyond the 15 days prescribed by Rule 2 of the Rent Restriction (Appeals) Rules, and without leave; applying Salat v IEBC, it was a nullity ab initio and the court had no jurisdiction to entertain it. It further held that the Appellant failed to prove exemption since no gazette notice was produced, submissions not being evidence. Although the court criticised the Tribunal's handling of the valuation reports as unorthodox and would have allowed the appeal on that ground, the appeal was struck out as incompetent. Neither party raised the timeliness point, so each party was ordered to bear its own costs.

Key legal issues

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01

Competence of the appeal - timeliness under Section 8(2) of the Rent Restriction Act and Rule 2 of the Rent Restriction (Appeals) Rules

Holding

The appeal, filed on 12th October 2016 against a ruling delivered on 21st September 2016, was out of the 15-day timeline and filed without leave; it was a nullity ab initio.

Reasoning

Section 8(2) confers a right of appeal to the Environment and Land Court, but Rule 2 requires filing within 15 days, extendable only on application for good cause. No such application was made. Citing the Supreme Court in Salat v IEBC, the court held that filing out of time and later seeking recognition is moving the court to remedy an illegality, which the court cannot do.

p. 4
02

Whether the court could entertain an appeal filed outside the statutory timeline because the point was not raised by the parties

Holding

The court could and did raise the jurisdictional point suo motu; jurisdiction cannot be conferred by the parties' silence or ignorance.

Reasoning

Neither advocate raised the timeliness issue, but jurisdiction is donated by the Constitution and statute, not by consent, acquiescence or ignorance of the law. Following Aburili J in Francis Ndahebwa Twala v Ben Ng'anyi, the court was duty bound to determine the jurisdictional issue even though uncanvassed, and to down its tools once jurisdiction was found wanting.

p. 5
03

Whether the suit premises were exempted institutional houses outside the Tribunal's jurisdiction

Holding

The Appellant failed to discharge the burden of proving exemption; no gazette notice exempting the premises was produced.

Reasoning

Exemption under Section 2 of the Rent Restriction Act requires the party claiming it to tender the relevant gazette notice published by the Minister/Cabinet Secretary. No such evidence was tendered before the Tribunal, and the lacuna cannot be plugged by submissions on appeal, as sections 107 and 108 of the Evidence Act place the burden of proof on the party asserting the fact.

p. 6
04

Whether the Tribunal lawfully disregarded its own valuer's report and adopted the Respondents' valuation

Holding

The Tribunal's approach was unorthodox; conflicting valuation reports required cross-examination of their makers, and on this ground alone the appeal would have succeeded.

Reasoning

The Tribunal had three conflicting valuation reports (its own valuer's, the Appellant's and the Respondents'). The proper course was to direct the makers to attend for cross-examination. Instead, the Tribunal adopted the Respondents' report without any proceedings, undermining its own operations and circumventing Section 5(2) of the Act. However, because the appeal was a nullity, this ground could not save it.

p. 6

Legal principles established

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  • Where the law prescribes a time within which an appeal must be filed, an appeal filed out of time without leave is a nullity and the court has no jurisdiction to entertain it.
  • Jurisdiction is conferred by the Constitution or statute and cannot be conferred by the parties' consent, acquiescence, silence or ignorance; where a court lacks jurisdiction it must down its tools.
  • A party claiming that dwelling houses are exempted from the Rent Restriction Act must avail the relevant gazette notice; submissions cannot take the place of evidence.

Court orders

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  1. 1.The Appeal is struck out for having been filed out of time and being a nullity ab initio.
  2. 2.Each Party shall bear own costs of the Appeal.

Authorities

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Legislation

  • Rent Restriction ActSection 8(2)
  • Rent Restriction ActSection 5 and Section 5(2)
  • Rent Restriction ActSection 2
  • Rent Restriction (Appeals) RulesRule 2
  • Evidence ActSections 107 and 108
  • Constitution of KenyaArticle 163(3) (referenced within quoted case law)

Cases cited (6)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Esther Gachambi Mwangi v Samuel Mwangi Mbiri
    [2013] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution
    Constitutional Application No. 2 of 2011
  • Francis Ndahebwa Twala v Ben Ng'anyi
    (2018) eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
On appeal from
Rent Restriction Tribunal
Suit filed on or about 26th June 2014 (number not stated)
Jurisdiction invoked
Section 8(2) of the Rent Restriction Act, Chapter 296 (appeal lies to the Environment and Land 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, "Board of Trustees Kiambu Institute of Science & Technology v Nicholas Kinyua & 50 others [2022] KEELC 1537 (KLR)", Case Analysis (2022). Not stated in judgment (Memorandum of Appeal against Ruling of Rent Restriction Tribunal dated 21st September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1537/eng@2022-02-10

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