Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutBPRT Appeal (Machakos)· [2024] KEELC 5280 (KLR)

Musingi v Damisha Building Contractors Ltd (Environment and Land Appeal 2 of 2022) [2024] KEELC 5280 (KLR)

Environment and Land Court
10 July 2024
ANA. Nyukuri
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A tenant's appeal against a Kshs 1.2 million rent order was struck out because he forgot to attach the Tribunal's order to his appeal.

What this practically means

#

Executive summary

#
This was an appeal to the Environment and Land Court at Machakos against orders of the Business Premises Rent Tribunal at Nairobi in BPRT Case No. 769 of 2020, made by Vice Chairperson Gakuhi Chege. The appellant, John Musingi, a tenant, challenged the Tribunal's order that he pay rent arrears of Kshs. 1,200,000/- to his landlord. Through five grounds of appeal, he argued that no valid tenancy agreement existed (the agreement relating to residential rather than business premises), that the landlord contributed nothing to the development of the premises, that the premises sit on a road reserve belonging to KeNHA and thus the landlord had no entitlement to rent, and that distress for rent was therefore illegal. The respondent maintained a valid tenancy agreement dated 17th March 2022 existed with a rent book kept per Cap 301, and that distress was properly levied following the tenant's habitual breach. The appeal was canvassed by written submissions. The court did not reach the merits: it observed that the order of 19th August 2022 appealed against was not included in the record of appeal, and there were no proceedings for the alleged date of delivery. Without the Tribunal's order and findings, the court held it had no decision before it for purposes of exercising its appellate jurisdiction, found the appeal fatally defective, struck it out and awarded costs to the respondent. Judgment was delivered virtually at Machakos on 10th July 2024 by A. Nyukuri, Judge, with no appearance by either party.

Key legal issues

#
01

Whether the appeal could proceed in the absence of the order appealed from

Holding

The appeal was struck out as fatally defective because the order of 19th August 2022 was not included in the record of appeal and no proceedings for that date were on record

Reasoning

The court noted that although the memorandum of appeal challenged an order said to have been delivered on 19th August 2022, the record of appeal contained neither that order nor the proceedings for that date. Without the decision appealed against, the court could not know the Tribunal's findings or the basis thereof, and therefore had nothing to consider in exercising its appellate jurisdiction. The appeal was consequently struck out with costs to the respondent.

p. 3

Legal principles established

#
  • An appeal is fatally defective where the order appealed against is not included in the record of appeal, as the appellate court is left with no decision to consider

Court orders

#
  1. 1.The appeal is struck out for failure to file the order appealed against
  2. 2.Costs of the appeal to the respondent

Authorities

#

Legislation

  • Land Registration ActSection 26
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act Cap 301Definition of 'tenancy'
  • Distress for Rent ActSection 3

Cases cited (3)

  • Republic v. Minister for Transport & Communication & 5 Others Ex parte Waa Ship Garbage Collector & 15 Others
    Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR
  • Chemud Investments Limited v. Attorney General & Others
    Nairobi Petition No. 94 of 2005
  • Joseph Nthumbi Kamrishi v. Asha Akumu Juma
    Embu HCCA No. 7A of 2016
On appeal from
Business Premises Rent Tribunal at Nairobi (Hon. Gakuhi Chege, Vice Chairperson)
BPRT Case No. 769 of 2020
Jurisdiction invoked
Appellate jurisdiction over orders of the Business Premises Rent Tribunal (per memorandum of appeal dated 10th February 2023)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Musingi v Damisha Building Contractors Ltd (Environment and Land Appeal 2 of 2022) [2024] KEELC 5280 (KLR)", Case Analysis (2024). BPRT Appeal (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5280/eng@2024-07-10

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