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ELCStruck OutMemorandum of Appeal dated 24th October 2023· [2024] KEELC 1675 (KLR)

Imbusa v Murunyu & another (Environment and Land Appeal E037 of 2023) [2024] KEELC 1675 (KLR)

High Court of Kenya
7 March 2024
4,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out a tenant's appeal because it was filed three days late — appeal deadlines are absolute and go to jurisdiction.

What this practically means

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Executive summary

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This is a first-instance appeal to the High Court from the judgment of the Chairperson of the Rent Restriction Tribunal delivered on 6th October 2023, in which the Appellant, a tenant, had sought injunctive relief against eviction, compensation of Kes.118,400 for damaged household goods, and related orders. The Appellant, appearing in person, advanced five grounds of appeal, contending that the tribunal disregarded her evidence, wrongly decreed rent arrears of Kes.72,500 despite the withdrawal of the counterclaim, and ignored her claim of rent overpayments. The Respondents, through counsel, submitted that the compensation claim was unproven, that special damages must be particularly pleaded and strictly proved, and that the overpayment claim contradicted the pleadings and prior tribunal orders. The court framed three issues: timeliness of the appeal, proof of the compensation claim, and the alleged rent arrears decree. On the first issue, applying Rule 2 of the Rent Restriction (Appeals) Rules, the court found the appeal, filed on 24th October 2023, was outside the 15-day timeline and that no extension of time had been sought, rendering it a nullity ab initio. On the second issue, the court held that the special damages claim was neither particularly pleaded nor strictly proved, and the tribunal's refusal to award it could not be faulted. On the third, the court found the tribunal made no rent-arrears order and the complaint was a red herring. The appeal was struck out with costs to the Respondents.

Key legal issues

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01

Timeliness of the appeal and its effect on jurisdiction

Holding

The appeal filed on 24th October 2023 was outside the 15-day timeline in Rule 2 of the Rent Restriction (Appeals) Rules, and no extension of time was sought or obtained; the appeal was a nullity ab initio and the court was divested of jurisdiction

Reasoning

Rule 2 of the Rent Restriction (Appeals) Rules requires an appeal under section 8(2) to be filed within 15 days of the decision. The judgment was delivered on 6th October 2023, so the deadline was 21st October 2023. The memorandum was filed on 24th October 2023 without leave or extension. Citing Phoenix of E.A. Assurance and Kakuta Maimai Hamisi, the court held timelines go to jurisdiction and cannot be cured by Article 159(2)(d).

p. 6
02

Proof of the claim for compensation of Kes.118,400 for damaged household goods

Holding

The claim, being one for special/liquidated damages, was neither particularly pleaded with particulars nor strictly proved by evidence, and the tribunal cannot be faulted for declining to award it

Reasoning

Special damages must be specifically pleaded and strictly proved, per David Bagine v Martin Bundi and Capital Fish Ltd v Kenya Power & Lighting Co Ltd. The appellant produced no evidence or particulars of the damaged goods, and her testimony before the tribunal said nothing of the claim. Parties are bound by their pleadings (IEBC v Mutinda Mule), and evidence at variance with pleadings goes to no issue.

p. 9
03

Whether the tribunal condemned the Appellant to pay rent arrears of Kes.72,500

Holding

No such order was made by the tribunal; the only rent order concerned accruing rents and utility bills, not arrears, so the complaint was a red herring

Reasoning

The court examined the tribunal's actual orders and found the only rent-related order directed the plaintiff to continue paying rents and utility bills as they fell due, with leave to levy distress in default. That order concerned accruing rents, not arrears, and thus the appellant's ground of appeal mischaracterised the tribunal's decision.

p. 10

Legal principles established

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  • The 15-day timeline for filing an appeal under Rule 2 of the Rent Restriction (Appeals) Rules is substantive and goes to jurisdiction; an appeal filed outside it without leave is a nullity ab initio
  • Special damages must be particularly pleaded and strictly proved
  • Parties are bound by their pleadings; evidence at variance with the pleadings must be disregarded

Court orders

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  1. 1.The appeal be and is struck out with costs to the Respondents

Authorities

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Legislation

  • The Rent Restriction Act, Chapter 296 Laws of KenyaSection 8(1) and 8(2)
  • The Rent Restriction Act, Chapter 296 Laws of KenyaSection 37
  • Rent Restriction (Appeals) RulesRule 2
  • Civil Procedure Rules, 2010Order 42 Rule 13
  • Civil Procedure Rules, 2010Order 2 Rule 6
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (12)

  • Nicholas K. Korir Arap Salat versus Independent Electoral and Boundaries Commission and Others
    Civil Application No. 16 of 2014 [2014] eKLR
  • Phoenix of E.A. Assurance Company Limited versus S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others
    [2013] eKLR
  • David Bagine vs Martine Bundi
    (1997) eKLR
  • Capital Fish Ltd vs Kenya Power & Lighting Company Ltd
    (2016) eKLR
  • Independent Electoral Boundaries Commission versus Stephen Mutinda Mule
    (2013) eKLR
  • Mariam Maghema Ali v. Jackson M. Nyambu t/a Sisera Store
    Civil Appeal No. 5 of 1990 (unreported)
  • Idi Ayub Sahbani v. City Council of Nairobi
    (1982-88) 1 KAR 681
  • Bonham Carter vs. Hyde Park Hotel Limited
    [1948] 64 TLR 177
  • National Social Security Fund Board of Trustees vs Sifa International Limited
    (2016) eKLR
  • Macharia & Waiguru vs Muranga Municipal Council & Another
    (2014) eKLR
  • Provincial Insurance Co. EA Ltd vs Mordekai Mwanga Nandwa
    KSM CACA 179 of 1995 (ur)
On appeal from
Rent Restriction Tribunal
Jurisdiction invoked
Section 8(2) of the Rent Restriction Act, Chapter 296 Laws of Kenya, as read together with the Rent Restriction (Appeals) 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, "Imbusa v Murunyu & another (Environment and Land Appeal E037 of 2023) [2024] KEELC 1675 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 24th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1675/eng@2024-03-07

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