Tymster Motors Limited v Adsite Limited & another (Miscellaneous Application E040 of 2025) [2025] KEELC 4512 (KLR)
The bottom line
#Kenya's High Court allowed a company to appeal late against a tribunal ruling because it only received the ruling days before filing, showing courts will excuse short, explained delays.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the affidavit sworn by the applicant's counsel is improper, and if so what is the fate of the application
- 2.Whether the Applicant is deserving of the orders of leave to file an appeal out of time
Key legal issues
#Validity of an affidavit sworn by the applicant's advocate
The affidavit was not defective because it deponed only to non-contentious procedural facts within the advocate's personal knowledge as agent, though advocates should generally avoid swearing affidavits in contentious matters.
Rule 8 of the Advocates (Practice) Rules bars an advocate from appearing where he may be a witness, but the proviso permits evidence on formal or non-contentious matters. The affidavit covered delivery of the ruling, the request for its copy and its receipt - facts known personally to counsel as the applicant's agent. The court therefore found no defect, while cautioning advocates against swearing affidavits on contentious matters to avoid becoming witnesses.
Whether leave to file an appeal out of time should be granted under Section 79G and Section 95 of the Civil Procedure Act
Leave was granted: the delay was explained by late receipt of the ruling, the application was brought promptly, and the respondents showed no prejudice.
Applying the Salat principles, the court found the ruling delivered 17/1/25 was only obtained on 27/2/25 and the application was filed a day later on 28/2/25. The delay was satisfactorily explained; the applicant merited a chance to be heard on appeal; and the respondents did not demonstrate any prejudice if the application was allowed and the appeal heard on merit.
Legal principles established
#- An advocate may swear an affidavit on formal or non-contentious facts within his personal knowledge as the party's agent, such as the chronology of the litigation and obtaining of a ruling.
- Extension of time is a discretionary, equitable remedy granted on sound legal basis and explained delay, not as of right.
- Delay occasioned by late receipt of the ruling is a satisfactory explanation for filing an extension application promptly thereafter.
Court orders
#- 1.The application dated 28/2/25 seeking leave to file an appeal out of time is allowed
- 2.The costs of the application shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal (BPRT)
- BPRT E1119 of 2024 - Adsite Limited v Tymstar Motors Limited, consolidated with E685 - Adsite Limited v John Kyee Muita
- Jurisdiction invoked
- Sections 79G and 95 of the Civil Procedure Act (appeal from a tribunal/subordinate decision; leave to appeal out of time)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end the application is allowed.
The costs of this application shall abide the outcome of the appeal.
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court
advocates should stay away from swearing afidavits on behalf of their clients moreso in contentious matters as by doing so they invite themselves into the arena of confiict
Issues in the judgment
#The judgment states the ruling was obtained on '27/2/28' in one passage, an apparent typographical error for 27/2/25.
On the deadline for filing the appeal, the judgment states the appeal ought to have been filed by 17/2/25 under Section 79G (30 days), whereas the affidavit states the time 'lapsed on 20th February, 2025'; the discrepancy is not reconciled.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tymster Motors Limited v Adsite Limited & another (Miscellaneous Application E040 of 2025) [2025] KEELC 4512 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 28/2/25). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4512/eng@2025-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.