Kionga Investments Company & another v Kimani (Miscellaneous Civil Application E109 of 2023) [2024] KEELC 1143 (KLR)
The bottom line
#The court let landlords revive their appeal after a two-year delay caused by their lawyer, but refused to block enforcement because they offered no security.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application and intended appeal are not res judicata; the earlier High Court appeal was struck out for lack of jurisdiction and therefore not heard and finally determined on the merits
Section 7 of the Civil Procedure Act requires that the matter in issue was heard and finally decided by a competent court. The prior appeal in HCCA No. E056 of 2022 was struck out for want of jurisdiction, which is not an adjudication on the merits. A dismissal or striking out for want of jurisdiction cannot ground res judicata, and applying it mechanically would offend Article 50(1) fair hearing and the statutory eschewal of procedural technicalities.
Extension of time to file appeal
Leave to appeal out of time granted; the almost two-year delay was inordinate but sufficiently explained by previous counsel filing the appeal in the wrong court, and no prejudice compensable in costs would be suffered
Applying the Salat principles, the applicant must show good and sufficient cause for the delay. The delay was occasioned by misapprehension of the law by previous counsel who filed in the High Court, which was struck out on 9/11/2023, and the present application was filed about 31 days later, hence without undue delay. Any prejudice to the respondent can be compensated by costs, and the memorandum of appeal discloses an arguable case.
Stay of execution
Stay refused; the Applicants failed to demonstrate substantial loss and offered no security
Under Order 42 Rule 6(2), the applicant must show substantial loss, that the application was made without unreasonable delay, and must furnish security. The Applicants merely asserted exposure to execution without evidencing substantial loss, and evaded the issue of security despite a money decree of Kshs. 500,000. Security is mandatory, and its absence disentitles them to a stay.
Legal principles established
#- A suit dismissed or struck out for want of jurisdiction has not been 'heard and finally decided' for purposes of res judicata under Section 7 of the Civil Procedure Act; a party may file a fresh appeal after the earlier appeal is struck out for lack of jurisdiction
- Mistakes of advocates should not be visited upon their clients when considering extension of time to appeal
- Security is a mandatory condition precedent for a stay of execution under Order 42 Rule 6(2)(b); a stay cannot be granted where no security is offered
Court orders
#- 1.The Appellants are granted leave to appeal out of time in terms of prayer 2 of the motion dated 3/11/2023
- 2.The Memorandum of Appeal filed and served by the Applicants against the Ruling of the Business Premises Rent Tribunal at Nairobi (Hon. Gakuhi Chege) delivered on 12/11/2021 be and is hereby deemed as duly filed and served within time upon payment of the requisite fees
- 3.Case to be mentioned for directions on 10/04/2024
- 4.Costs be in the cause
- On appeal from
- Business Premises Rent Tribunal at Nairobi (Hon. Gakuhi Chege)
- BPRT Case No. 986 of 2019
- Jurisdiction invoked
- Sections 1A, 1B, 3A & 79G of the Civil Procedure Act (Cap 21), Order 42 & Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kionga Investments Company & another v Kimani (Miscellaneous Civil Application E109 of 2023) [2024] KEELC 1143 (KLR)", Case Analysis (2024). Notice of Motion dated 3/11/2023 (BPRT Appeal arising from BPRT Case No. 986 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1143/eng@2024-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.