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ELCPartially AllowedMiscellaneous Application No. E003 of 2023· [2024] KEELC 7211 (KLR)

Severin Sea Lodge (EA) Limited v Baracuda Kenya Limited (Miscellaneous Application E003 of 2023) [2024] KEELC 7211 (KLR)

Environment and Land Court
16 October 2024
7,780 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a Mombasa hotelier to appeal late against a rent tribunal ruling because the tribunal's own delays caused the holdup.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Hon. L. L. Naikuni, J) determined two competing motions: a preliminary objection by Baracuda Kenya Limited (Tenant/Respondent) contending that the entire proceedings were defective for contravening Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, and a Notice of Motion by Severin Sea Lodge (E.A.) Limited (Landlord/Applicant) seeking leave to appeal out of time against the ruling of the Vice Chairman of the Business Premises Rent Tribunal dated 5th June 2023, which dismissed the Applicant's preliminary objection challenging the Tribunal's jurisdiction on the basis that the parties were licensor and licensee under a one-year License to Use Agreement. The court framed three issues. On the first, relying on Mukisa Biscuit Manufacturing Co Ltd and the Supreme Court's decision in Republic v Karisa Chengo, it held that the ELC is the proper forum for such appeals and found the preliminary objection unmerited, overruling it. On the second, applying the principles in Leo Sila Mutiso and First American Bank of Kenya, the court found the roughly four-month delay not inordinate, explaining that the Tribunal delayed releasing the ruling - which was only partly availed on 7th September 2023 - and the certified proceedings until February 2024. Leave to appeal out of time was granted with 30 days to compile, file and serve the Record of Appeal, with mention on 3rd December 2024 for admission and directions. Although costs ordinarily follow the event, the court reserved its discretion and made no order as to costs.

Key legal issues

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01

Whether the preliminary objection met the threshold of a pure point of law

Holding

The objection was unmerited; the court found it raised matters of fact and did not defeat the court's jurisdiction, which is expressly conferred by Section 15(1) of Cap 301

Reasoning

The court relied on Mukisa Biscuit Manufacturing Co Ltd for the definition of a preliminary objection as a pure point of law argued on assumed facts. It held that the ELC is the competent forum for appeals from the BPRT under Section 15(1), citing the Supreme Court's decision in Republic v Karisa Chengo on the sui generis jurisdiction of the ELC. It declined to be party to defeating a right of appeal caused by the Tribunal registry's administrative delays, and overruled the objection.

p. 11
02

Whether leave should issue to file the appeal out of time under Section 79G and Section 95 of the Civil Procedure Act

Holding

Leave was granted; the roughly four-month delay was not inordinate and was satisfactorily explained by the Tribunal's failure to avail the ruling and proceedings

Reasoning

Applying the Leo Sila Mutiso and First American Bank of Kenya principles, the court considered the length of the delay, the reason for it, the arguability of the intended appeal and prejudice to the respondent. It found the delay from June to October 2023 was attributable to the Tribunal's registry, which released only an incomplete ruling on 7th September 2023 and certified proceedings only in February 2024, and thus did not amount to inordinate delay.

p. 14
03

Costs of the applications

Holding

No orders as to costs despite the general principle that costs follow the event

Reasoning

The court acknowledged Section 27(1) of the Civil Procedure Act and the principle that costs follow the event, citing Supreme Court authority, but chose in its discretion not to award costs, reserving its discretion in the circumstances of the case.

p. 14

Legal principles established

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  • Appeals from the Business Premises Rent Tribunal lie to the Environment and Land Court, which has jurisdiction to extend the 30-day appeal period where sufficient reason is shown
  • Delay in obtaining a copy of a ruling and certified proceedings from a tribunal registry is a sufficient reason excusing late filing of an appeal

Court orders

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  1. 1.The Notice of Preliminary Objection dated 18th October, 2023 is found to lack merit and is overruled
  2. 2.The Notice of Motion application dated 24th October, 2023 is found to have merit and is allowed in its entirety
  3. 3.Leave granted to the Landlord/Applicant to file an appeal out of time against the Ruling dated 5th June 2023 delivered by the Vice Chairman of the Business Premises Rent Tribunal
  4. 4.The Applicant granted 30 days to compile, file and serve the Record of Appeal
  5. 5.Matter to be fixed for mention on 3rd December, 2024 for admission of the Appeal and directions under Sections 79B & G of the Civil Procedure Act and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010
  6. 6.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27(1), 79G, 95
  • Civil Procedure Rules, 2010Order 51 Rule 1; Order 42 Rules 11, 13 and 16
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActSections 12, 12(4), 15(1)
  • Constitution of Kenya, 2010Article 162(3) (as discussed in Karisa Chengo)

Cases cited (14)

  • Mukisa Biscuit Manufacturing Co. Limited v West End Distributors Limited
    [1969] EA 696
  • Martha Akinyi Migwambo v Susan Ongoro Ogenda
    [2022] eKLR
  • Njoroge v Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR)
  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR
  • Republic v Karisa Chengo & 2 others
    (Supreme Court Petition No 5 of 2015) 2017 eKLR
  • Leo Sila Mutiso v Rose Hellen Wangeri Mwangi
    Civil Appeal 255/1997
  • First American Bank of Kenya Ltd v Gulab P. Shah & Others
    HCC 2255/2000 [2002] 1EA 65
  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR
  • Jasbir Rai Singh v Tarchalan Singh
    eKLR (2014)
  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    eKLR (2014)
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
  • Agnes Wambui Maina t/a Agnes Pharmaceuticals v Ola Energy (K) Limited
    (2022) eKLR
  • Lucy Wanjiku Kinyanjui v Wilson Nguyo
    (2022) eKLR
  • BP Nairobi Service Station Limited v BP Kenya Limited
    Nairobi HCC No.3424 of 1982
On appeal from
Business Premises Rent Tribunal
E012 of 2022
Jurisdiction invoked
Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301

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, "Severin Sea Lodge (EA) Limited v Baracuda Kenya Limited (Miscellaneous Application E003 of 2023) [2024] KEELC 7211 (KLR)", Case Analysis (2024). Miscellaneous Application No. E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7211/eng@2024-10-16

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