Benard Oyugi t/a Jobenpha School v Kimani (Suing as the Guardian of Samuel Kimani Karoki) (Environment and Land Appeal E035 of 2022) [2024] KEELC 1613 (KLR)
The bottom line
#A Kenyan court ruled that ongoing negotiations with a landlord don't excuse missing the legal deadline to challenge a termination notice at the Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Tribunal erred in declining to grant leave to file a reference out of time under Section 6(1) of Cap. 301
The appeal was dismissed; the Tribunal properly exercised its discretion in finding the delay of about eight months unreasonable and declining to extend time
Section 6(1) of Cap. 301 permits a Tribunal, for sufficient reason, to allow a reference notwithstanding non-compliance with the requirement to refer the matter before the termination notice takes effect. The appellant had filed an objection within 30 days but failed to file the reference before 1st August 2019, moving the court only about six months later. The court held that negotiations between the parties and ignorance of the requirement (the appellant being represented by counsel) did not amount to sufficient reason, and found no basis to interfere with the Tribunal's exercise of discretion on appeal.
The standard for interference with a discretionary decision on appeal
An appellate court will not interfere with a discretionary decision merely because it would have weighed the factors differently; interference is only justified on established grounds of misdirection
Relying on United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd (1985) EA, the court restated that a court sitting on appeal will not substitute its own view of the weight to be given to various factors. Interference is warranted only where the tribunal misdirected itself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or where the decision, though discretionary, is plainly wrong.
Legal principles established
#- An appellate court will not interfere with a discretionary decision unless the court below misdirected itself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or its decision is plainly wrong
- Ongoing negotiations between the parties do not constitute sufficient cause for non-compliance with statutory timelines for filing a reference under Section 6(1) of Cap. 301
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear own costs of the appeal
- On appeal from
- Business Premises Rent Tribunal
- null (application dated 3rd February 2020; related reference BPRT No. 727 of 2019)
- Jurisdiction invoked
- First appeal from the Business Premises Rent Tribunal under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Oyugi t/a Jobenpha School v Kimani (Suing as the Guardian of Samuel Kimani Karoki) (Environment and Land Appeal E035 of 2022) [2024] KEELC 1613 (KLR)", Case Analysis (2024). Appeal from BPRT; Memorandum of Appeal dated 26th April, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1613/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.