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ELCPartially AllowedNairobi Rent Restriction Case No. 719 of 2015 (Notice of Motion dated 2nd November 2015)

Jelliah Ayieni v Julius Mwangi Mworia t/a Companion Kenya Limited [2018] KEELC 919 (KLR)

High Court of Kenya (Rent Restriction jurisdiction)
24 October 2018
753 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan landlord got a second chance at justice because the tenant couldn't prove he was served with court papers.

What this practically means

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Executive summary

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The landlord/applicant, Julius Mwangi Mworia, moved the court by Notice of Motion dated 2nd November 2015 under Section 8(2) of the Rent Restriction Act, Sections 27 and 28 of the Limitation of Actions Act, and various provisions of the Civil Procedure Act and Rules, seeking leave to appeal out of time and the setting aside, review or variation of the ruling and consequential orders issued on 24th September 2015 in Nairobi Rent Restriction Case No. 719 of 2015. He contended that the tenant/respondent, Jelliah Ayieni, was his tenant from 12th January 2015 to 10th August 2015, never paid rent for January 2015 and vacated without notice or paying rent for August 2015, and that he was entitled to a fair hearing under Article 50(1) of the Constitution. The respondent opposed, arguing the application was filed over six months after judgment, that Order 45 Rule 1 was not properly invoked, and that it was an abuse of court process, relying on Edward Mwaniki Gaturu & Another v Attorney General and Mohan Meakin (K) Limited v Mutunga Kiundi. The court found that although the respondent deponed that the applicant had been served with summons, she did not annex an affidavit of service, so the applicant may not have been served at all. Guided by Article 50(1), the court held the applicant was entitled to a fair hearing and should not be condemned unheard. The application was allowed: leave to appeal out of time was granted, execution was stayed pending the appeal, the appeal was to be filed within thirty days failing which the application would stand dismissed, and each party was to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the landlord/applicant's application for leave to appeal out of time, and for setting aside, review or variation of the ruling and consequential orders of 24th September 2015, is merited

Key legal issues

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01

Whether the applicant was duly served with summons in the underlying rent restriction case

Holding

The court found the applicant may not have been served at all because the respondent did not annex an affidavit of service

Reasoning

The respondent's affidavit asserted service and acknowledgement under protest, but she did not annex the affidavit of service for the court's perusal. The applicant denied service. In the absence of the affidavit of service, the court could not verify service and found service may not have occurred, engaging the applicant's right to a fair hearing.

p. 2
02

Whether the applicant is entitled to a fair hearing notwithstanding the default judgment

Holding

Yes - Article 50(1) entitles the applicant to a fair hearing and he should not be condemned unheard

Reasoning

The court invoked Article 50(1) of the Constitution, which guarantees every person the right to have any dispute decided in a fair and public hearing, and applied it to conclude that a party who may not have been served cannot be condemned unheard, justifying setting the default outcome aside through leave to appeal.

p. 2
03

Whether the application filed over six months after judgment is an abuse of court process

Holding

The court found merit in the application and granted the orders sought

Reasoning

The respondent argued the application was filed over six months after judgment, that Order 45 Rule 1 was not properly invoked and that it was an abuse of process, relying on two authorities. The court did not resolve these objections expressly; instead, grounded on the lack of proof of service and Article 50(1), it found merit and granted leave to appeal out of time with a conditional 30-day timeline.

p. 2

Legal principles established

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  • A party is entitled to a fair hearing under Article 50(1) of the Constitution and should not be condemned unheard
  • A party asserting proper service must annex an affidavit of service; in its absence the court may find that service did not occur

Court orders

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  1. 1.Leave granted to the landlord/applicant to file appeal out of time
  2. 2.Stay of execution pending the filing of the appeal
  3. 3.The appeal be filed within thirty (30) days from the date of the order, in default the application shall stand dismissed
  4. 4.Each party to bear his/her own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 8(2) of the Rent Restriction Act, Sections 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act and Order 10 Rule 11, Order 22 Rule 22, Order 37 Rule 6, Order 51 Rule 1 and 15 of the Civil Procedure Rules 2010

Relief refused

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Setting aside, review and/or variation of the ruling of 24th September 2015 to the extent it was not expressly granted (the court granted leave, stay and conditional dismissal instead)

The court instead granted leave to appeal out of time with stay of execution, making the application stand dismissed in default of filing the appeal within 30 days

p. 2

Costs

Each party to bear his/her own costs.

Quotable passages

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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 absence of such affidavit of service, I find that he applicant may not have been served at all.
p. 2proof of service - affidavit of service required
I am guided by the above provisions in finding that the applicant is entitled to a fair hearing. He should not be condemned unheard.
p. 2Article 50(1) fair hearing - condemned unheard
(a) That leave is hereby granted to the landlord/applicant to file appeal out of time. (b) That there be stay of execution pending the filing of the appeal.
p. 2final orders - leave and stay
The appeal be filed within (30) thirty days from the date hereof. In default this application shall stand dismissed.
p. 2final orders - conditional timeline
(d) Each party to bear his/her own costs.
p. 2final orders - costs

Issues in the judgment

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minor

The judgment does not state the case number of the matter before the court itself; the only case number appearing is Nairobi Rent Restriction Case No. 719 of 2015, which the application describes as the underlying matter whose ruling of 24th September 2015 is sought to be set aside

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, "Jelliah Ayieni v Julius Mwangi Mworia t/a Companion Kenya Limited [2018] KEELC 919 (KLR)", Case Analysis (2018). Nairobi Rent Restriction Case No. 719 of 2015 (Notice of Motion dated 2nd November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/919/eng@2018-10-24

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