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ELCAllowedNotice of Motion dated 12/11/2021 (Civil Appeal from Business Premises Rent Tribunal Case No. 828 of 2019, consolidated with Nos. 826, 827, 828 and 829 of 2019)· [2022] KEELC 3758 (KLR)

Diastar Autocare Centre & 2 others v Ghatahora (Civil Appeal 4 of 2021) [2022] KEELC 3758 (KLR)

High Court of Kenya
16 May 2022
MOMogeni
1,849 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The High Court allowed tenants to appeal a rent tribunal ruling two months late because they were never told the ruling date.

What this practically means

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Executive summary

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The applicants, aggrieved by a Business Premises Rent Tribunal ruling delivered on 30/08/2021 in Tribunal Case No. 828 of 2019 (consolidated with Nos. 826, 827, 828 and 829 of 2019) dismissing their preliminary objection, moved the High Court by Notice of Motion dated 12/11/2021 seeking leave to file a Notice of Appeal out of time. Their advocate, Edna Brandy Wanja, and the 2nd appellant, Paramjit Singh, deponed that neither they nor their counsel were notified of the delivery date; counsel discovered the ruling had been delivered when fixing the reference for hearing on 18/10/2021, and a copy of the ruling was only obtained after the appeal period had lapsed. The respondent opposed the application as frivolous and an abuse of process. Framing one issue - whether leave could be granted to appeal out of time - Mogeni J applied Sections 79G and 95 of the Civil Procedure Act and the principles in Leo Sila Mutiso, First American Bank v Gulab P. Shah, Chemaringo v Kibet and Nicholas Kiptoo Korir Arap Salat v IEBC. The court found the delay of about two months and twelve days not inordinate, accepted the explanation after verifying from the lower court file that the ruling was indeed delivered in the applicants' absence, noted the draft Memorandum of Appeal raised arguable issues on the respondent's capacity to raise rent over property of deceased joint owners, and held any prejudice was compensable in costs. The application was allowed with no order as to costs.

Key legal issues

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01

Whether to grant leave to file a Notice of Appeal out of time

Holding

Leave granted: delay of about 2 months was not inordinate, the explanation (no notice of the ruling date; delayed copy of ruling) was sufficient, and no prejudice not compensable in costs.

Reasoning

The court applied the Leo Sila Mutiso and Salat principles: length of delay, reason for delay, arguability and prejudice. It found a 2 months and 12 days delay not inordinate; the tribunal ruling was delivered in the applicants' absence without notice, which the court verified from the lower court file. The draft Memorandum of Appeal raised arguable issues on the respondent's capacity to raise rent, and any prejudice to the respondent could be compensated by costs.

p. 3

Legal principles established

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  • Factors for extension of time: length of delay, reason for delay, chances of appeal succeeding, and prejudice to respondent
  • A party seeking extension of time must satisfactorily explain the cause of the delay regardless of its length

Court orders

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  1. 1.Prayer no. (2) in the Notice of Motion dated 12/11/2021 allowed - leave granted to file appeal out of time
  2. 2.Applicant to file its Appeal within 14 days from the date of the order
  3. 3.No order as to costs

Authorities

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Legislation

  • Civil Procedure Act Cap 21Sections 1A, 1B, 3A, 79G, 95
  • Civil Procedure RulesOrder 42 Rule 6, Order 51 Rule 1
  • Appellate Jurisdiction ActSection 7 (referenced in heading)

Cases cited (4)

  • Leo Sila Mutiso vs Rose Hellen Wangeri Mwangi
    Civil Appeal 255/1997
  • First American Bank of Kenya Ltd -vs- Gulab P. Shah & Others
    HCC 2255/2000 [2002] IEA 65
  • Andrew Kiplagat Chemaringo V Paul Kipkorir Kibet
    [2018] eKLR
  • Nicholas Kiptoo Korir Arap Salat vs. IEBC & 7 Others
    [2014] eKLR
On appeal from
Business Premises Rent Tribunal
Tribunal Case Number 828 of 2019 (consolidated with 826, 827, 829 of 2019)
Jurisdiction invoked
Sections 79G and 95 of the Civil Procedure Act; Sections 1A, 1B & 3A Civil Procedure Act; Order 42 Rule 6 & Order 51 Rule 1 Civil Procedure Rules

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, "Diastar Autocare Centre & 2 others v Ghatahora (Civil Appeal 4 of 2021) [2022] KEELC 3758 (KLR)", Case Analysis (2022). Notice of Motion dated 12/11/2021 (Civil Appeal from Business Premises Rent Tribunal Case No. 828 of 2019, consolidated with Nos. 826, 827, 828 and 829 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3758/eng@2022-05-16

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