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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (application arising from intended appeal against Nakuru Business Premises Rent Tribunal Case No. E153 of 2022)· [2024] KEELC 4430 (KLR)

Taifa Sacco Limited v Saleh Omar Saleh

Environment and Land Court of Kenya
30 May 2024
2,270 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Taifa Sacco Limited applied to the Environment and Land Court at Nakuru for stay of execution of a ruling delivered on 1 November 2023 in Nakuru Business Premises Rent Tribunal Case No. E153 of 2022, stay of further Tribunal proceedings, a temporary injunction against eviction, and extension of time to appeal out of time under Cap 301. The dispute arose from a lease over premises in Roma Building, Nakuru; the respondent obtained a Tribunal ruling ordering the applicant to vacate. The applicant said the ruling was delivered without notice and it only learned of it when served with an eviction notice and the ruling in February 2024, and further challenged the Tribunal's jurisdiction and the validity of service of the termination notice. The respondent countered that the applicant was served, breached the lease by subletting, and was indolent. The court held the delay was excused because the Tribunal, bound by Article 47 of the Constitution and the Fair Administrative Action Act, had the duty to notify parties of the ruling date. The court found the application timeous, found substantial loss from threatened eviction of an applicant who had invested in the premises and offered security, and found the jurisdictional challenge and the service question arguable. It granted stay of execution and of the Tribunal proceedings, allowed the applicant 10 days to file the memorandum of appeal and 30 days thereafter for the record of appeal, with costs in the appeal. It refused the temporary injunction because the ruling below was positive, holding that an injunction would amount to an injunction against the court.

Key legal issues

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01

Whether the delay in filing the appeal should be excused

Holding

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.

Reasoning

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.

p. 4
02

Whether stay of execution pending appeal should issue

Holding

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.

Reasoning

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.

p. 4
03

Whether a temporary injunction pending appeal should issue

Holding

Injunction refused because the Tribunal's ruling was positive; the proper remedy is stay of execution.

Reasoning

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.

p. 4
04

Whether the intended appeal is arguable

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Stay of execution of the ruling delivered on November 1, 2023 pending the hearing and determination of the intended appeal
  2. 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. 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. 4.Costs to be in the appeal
  5. 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

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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, "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.