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ELCDismissedEnvironment and Land Appeal E001 of 2021· [2023] KEELC 16465 (KLR)

Adventure Adrenaline Africa Limited v Hartley

Environment and Land Court
21 March 2023
ADA.E. Dena
5,598 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan tenant lost its bid to overturn a possession order, confirming that review is a narrow remedy and delay kills applications.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (A.E. Dena, J) determines two applications arising from the court's judgment of December 9, 2022, which dismissed the appellant's appeal against a Business Premises Rent Tribunal decision and ordered the appellant tenant to vacate the suit premises within 90 days, release of rent deposits to the landlord, and payment of rent accruing thereafter. The appellant, through new advocates (Harit Sheth Advocates), applied for review of the judgment on the ground that the respondent had transferred the suit property to Kama Kawaida during the proceedings, rendering the order for surrender to the landlord erroneous on the face of the record; it also sought stay of execution of the decree. The respondent objected to the review application because no notice of change of advocates was filed or served. The court held that Order 9 is not a technicality for striking out applications where, as here, the previous firm's stamped and signed consent existed, and deemed the application properly on record under section 3A. On the merits, the court found no new and important matter (the transfer was known and litigated), no error apparent on the face of the record (an erroneous conclusion is a ground for appeal, not review, and the court was functus on the transfer issue), and unreasonable unexplained delay of about two months rendering the application an afterthought. The stay application was also found unmerited. Both applications were dismissed with costs to the respondent, and the interim stay orders collapsed.

Key legal issues

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01

Whether failure to file notice of change of advocates rendered the review application a nullity

Holding

No; the application was deemed properly before court

Reasoning

The court analysed Order 9 Rules 5, 6 and 9, holding their purpose is to protect the outgoing advocate's interests, not to be a technicality for striking out. A stamped and signed consent from the previous firm existed, and counsel admitted the error. Under section 3A and Article 159(2)(d) the court deemed the application properly on record.

p. 5
02

Whether the official search showing transfer of the suit property was new and important matter

Holding

No; the transfer was known and litigated during the proceedings

Reasoning

The court held new matter must be novel and never have featured in the proceedings. The transfer was raised in the ruling of January 31, 2022 and the judgment addressed the landlord's intention to occupy with full knowledge of the transfer. Moreover, a controlled tenancy runs with the title, so the transfer would not affect the tenant's position.

p. 7
03

Whether there was an error apparent on the face of the record in ordering surrender of the premises to a landlord who had transferred the property

Holding

No; the alleged error is at most a ground of appeal, not review

Reasoning

Relying on Nyamogo & Nyamogo v Kogo and Stephen Githua Kimani, the court held an error apparent must stare one in the face. The appellant's complaint invited re-appraisal of the tribunal record and the judgment, which is not the function of review. The court was also functus on the transfer issue, the appellant having not appealed it.

p. 8
04

Whether the review application was filed without unreasonable delay

Holding

No; the delay of about two months was unexplained and the application was an afterthought

Reasoning

Judgment was delivered December 9, 2022 and the review filed February 20, 2023, around the 85th day of the 90-day grace period. No explanation was offered; courts were open and duty judges working. Following Republic v Medical Practitioners Board ex parte King'ang'a, delay must be explained.

p. 9
05

Whether stay of execution of the decree should issue pending the review

Holding

No; the stay application was dismissed

Reasoning

The court considered the respondent's notice of motion dated March 7, 2023, the supporting affidavit of Muthama Adams Advocate, the totality of the review application and its findings, and concluded the stay application was not merited. The interim stay orders collapsed with the dismissal.

p. 10

Legal principles established

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  • Review is confined to the grounds in section 80 CPA and Order 45; an erroneous conclusion of law or evidence is a ground for appeal, not review
  • An error of law on the face of the record must stare one in the face and admit of no two opinions
  • Order 9 non-compliance on change of advocates is not a ground for striking out where a consent of the former advocate exists; the court should settle representation and do substantial justice

Court orders

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  1. 1.The application dated February 20, 2023 (review) is dismissed with costs to the Respondent
  2. 2.The application dated March 2, 2023 (stay of execution) is dismissed with costs to the Respondent
  3. 3.The temporary orders of stay of execution issued pursuant to the application dated March 2, 2023 collapse with it

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure Rules, 2010Order 9 Rules 5, 6, 8 and 9
  • Civil Procedure Rules, 2010Order 45 rule 1
  • Civil Procedure Actsection 3A
  • Constitution of KenyaArticle 159(2)(d)
  • Landlord & Tenants Act (Cap 301)sections 4(2), 7(1)(g), 7(2)
  • Environment and Land Court Actoriginal jurisdiction

Cases cited (14)

  • Auto Engineering Ltd Vs. M. Gonella & Co. Ltd
    (1978) eKLR - Civil Appeal No. 70 of 1976 and 51 of 1977

    Landlord must demonstrate clear and firm intention to occupy premises for not less than one year

  • Mary Nyambura Kathiaka vs David Mwangi Muraguri
    (2022) KEH 506 (KLR), Embu High Court Civil Appeal No. 7B of 2019

    Cited on scope of review

  • National Bank of Kenya Limited vs Ndungu Njau
    (1997) eKLR, Court of Appeal Civil Appeal No. 211 of 1996

    Cited on review

  • Republic Vs Medical Practitioners Board & Others exparte Geoffrey Muiruri King'ang'a
    (2021) KEHC 298 (KLR), Nairobi High Court Judicial Review Misc. Civil Application Nos. 59 & 63 (consolidated)

    Even a delay of one day must be accounted for; delay grounds stand or fall on explanation

  • Francis Origo & Another vs Jacob Kumali Mungala
    (2005) eKLR, Court of Appeal No. 149 of 2001

    Erroneous conclusion of law or evidence is a ground for appeal not review; review option leads to a dead end

  • Lalji Bhimji Sanghani Builders & Contractors vs. City Council of Nairobi
    (2012) eKLR, Nairobi High Court Civil Case No. 1230 of 1997

    Court declined to apply sections 1A and 1B where no notice of change of advocates was filed

  • Odhiambo Oteng
    E003 of 2022

    Genesis of Order 9 - protecting lawyers who obtained judgment from mischievous post-judgment change of counsel

  • Khalif Sheikh Adan V Attorney General
    [2019] eKLR

    Parameters for grant of review, citing Republic v Public Procurement Administrative Review Board

  • Republic –Vs- Public Procurement Administrative Review Board & 2 Others
    (2018) eKLR

    Grounds and scope of review are restricted by the rules

  • Evan Bwire V Andrew Aginda
    Civil Appeal No. 147 of 2006

    Review allowed only on strong grounds, cited in Stephen Githua Kimani

  • Stephen Githua Kimani V Nancy Wanjira Waruingi T/A Providence Auctioneers
    (2016) eKLR

    Review only on strong grounds; error on the face of the record must stare one in the face

  • Nyamogo & Nyamogo Advocates –vs- Kogo
    (2001) 1EA 173

    Definition of error apparent on the face of the record

  • Jameny Mudaki Asava v Brown Otengo Asava & Another
    (2015) eKLR

    Cited Origo v Mungala on review versus appeal

  • Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 others
    Civil Appeal No. 25 of 2002 (2009) eKLR 229

    Definition of abuse of court process; there must be an end to litigation

On appeal from
Business Premises Rent Tribunal
Jurisdiction invoked
Environment and Land Court Act (appellate jurisdiction over the Tribunal); Civil Procedure Act section 80 and Order 45 for review; section 3A inherent jurisdiction

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, "Adventure Adrenaline Africa Limited v Hartley", Case Analysis (2023). Environment and Land Appeal E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16465/eng@2023-03-21

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