Taifa Sacco Limited v Saleh Omar Saleh
The bottom line
#A Kenyan court let a Sacco appeal late because the Tribunal never told it when the ruling would be delivered, and stopped the eviction meanwhile.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the appeal should be excused
The delay was excused because the applicant was unaware of the ruling until served with an eviction notice and copy of the ruling on 20 February 2024; the application filed on 7 March 2024 was timeous.
The court rejected the respondent's indolence argument as a misapprehension of equity, holding that equity ensures fairness and that the duty to notify parties of the ruling date lay with the Tribunal, which is bound by Article 47 of the Constitution and the Fair Administrative Action Act. The applicant acted within approximately three weeks of learning of the ruling.
Whether stay of execution pending appeal should issue
Stay was granted: the application was timeous, the applicant faces eviction despite investment in the premises, would suffer substantial loss, and was willing to deposit security.
The court found the applicant satisfied the requirements for stay: substantial loss from threatened eviction despite investment in the premises, and readiness to deposit security ordered by the court. The respondent's contention that the application failed under Order 42 rule 6(2) was not accepted.
Whether a temporary injunction pending appeal should issue
Injunction refused because the Tribunal's ruling was positive; the proper remedy is stay of execution.
The court held it has jurisdiction to grant temporary injunctions pending appeal but only where the ruling below was negative. Since the Tribunal delivered a positive ruling, granting an injunction would amount to an injunction against the court itself; stay of execution is sufficient in such circumstances.
Whether the intended appeal is arguable
The appeal was arguable on the questions of the Tribunal's jurisdiction over the lease and whether the applicant was served with the notice to vacate.
The court found the challenge to the Tribunal's jurisdiction raised a substantive arguable issue, since jurisdiction goes to the foundation of the dispute. The dispute over service of the notice to terminate/vacate also rendered the appeal arguable, justifying the leave and stay orders.
Legal principles established
#- It is the Tribunal's duty to give a party notice of the ruling date, and quasi-judicial bodies are bound by the principles of fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act.
- A temporary injunction pending appeal issues only against a negative ruling; where a positive order was made, the remedy is stay of execution.
- Jurisdiction is an arguable issue on appeal because a court or tribunal without jurisdiction has no basis to entertain a dispute.
Court orders
#- 1.Stay of execution of the ruling delivered on November 1, 2023 pending the hearing and determination of the intended appeal
- 2.Stay of further proceedings in Nakuru Business Premises Rent Tribunal Case No. E153 of 2022 pending the hearing and determination of the intended appeal
- 3.Leave for the applicant to file and serve its memorandum of appeal out of time within 10 days, and to file the record of appeal within 30 days after service
- 4.Costs to be in the appeal
- 5.Refusal of the order of temporary injunction
- On appeal from
- Nakuru Business Premises Rent Tribunal
- E153 of 2022
- Jurisdiction invoked
- Appellate/supervisory jurisdiction over the Business Premises Rent Tribunal under Cap 301 (Landlord and Tenant (Shops, Hotels and Catering Establishments) Act), with leave sought under Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Taifa Sacco Limited v Saleh Omar Saleh", Case Analysis (2024). Not stated in judgment (application arising from intended appeal against Nakuru Business Premises Rent Tribunal Case No. E153 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4430/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.