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ELCStruck Out

Toncap Investment v LN Property Development Co Limited (Environment and Land Appeal E004 of 2023) [2024] KEELC 5041 (KLR)

Environment and Land Court
3 July 2024
GOG M A Ongondo
396 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out Toncap Investment's rent appeal because the company repeatedly ignored court deadlines, and it must now pay the other side's costs.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Homa Bay, filed by Toncap Investment through Aluoch Odera and Nyauke Advocates, challenging a decision of the Business Premises Rent Tribunal. By an amended memorandum of appeal dated 20th November 2023, the appellant raised two grounds: that the Tribunal erred in taxing the Landlords' Bill ex-parte without justifiable grounds, and that the bill was excessive and unjustifiable. The appellant sought orders allowing the appeal, quashing the ex-parte order allowing the bill, re-submission of the bill for assessment, and costs. At the hearing, counsel for the respondent, Mr. H. Kabiru, applied to strike out the appeal for non-compliance with court orders of 8th February 2024 and 20th May 2024, which had required the appellant to file and serve the record of appeal. He relied on an affidavit of service sworn on 23rd May 2024 by process server Peter Muendo Keli establishing that the appellant's counsel had been served. Ongondo J held that the appellant had been duly served and accorded a fair opportunity as guaranteed by Articles 48 and 50(1) of the Constitution, citing Ogada v Mollin and James Kanyiita Nderitu v Ghikas. The court further noted that under Article 159(2)(b) of the Constitution and sections 3 and 19 of the Environment and Land Court Act, justice shall not be delayed. The appeal was accordingly struck out with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the appeal should be struck out for the appellant's non-compliance with court orders of 8th February 2024 and 20th May 2024 requiring filing and service of the record of appeal

Key legal issues

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01

Whether the appeal ought to be struck out for non-compliance with filing orders

Holding

The appeal was struck out because the appellant failed to comply with orders of 8th February 2024 and 20th May 2024 requiring filing and service of the record of appeal, despite being duly served with notice of the orders

Reasoning

Counsel for the respondent applied to strike out the appeal, relying on an affidavit of service sworn on 23rd May 2024 by Peter Muendo Keli showing the appellant's counsel was served. The court found the appellant had been accorded a fair opportunity as guaranteed by Articles 48 and 50(1) of the Constitution. Weighing this against the constitutional imperative that justice shall not be delayed under Article 159(2)(b), the court found the striking-out application merited.

p. 2

Legal principles established

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  • A party accorded fair opportunity under Articles 48 and 50(1) of the Constitution who fails to comply with court orders risks having the appeal struck out, as justice shall not be delayed

Court orders

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  1. 1.The appeal is struck out
  2. 2.Costs of the appeal awarded to the respondent

The bench

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

GO
majority

Wrote the judgment

On appeal from
Business Premises Rent Tribunal
Jurisdiction invoked
Appellate jurisdiction over the Business Premises Rent Tribunal; constitutional provisions Articles 48, 50(1) and 159(2)(b) cited

Relief refused

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Order allowing the appeal and quashing the ex-parte order allowing the Landlords' Bill of Costs, with re-submission of the bill for assessment

The appeal was struck out for the appellant's continued non-compliance with orders to file and serve the record of appeal, despite due service

p. 2

Costs

Costs of the appeal to the respondent

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.

The upshot is that the application by learned counsel for the respondent is merited and this appeal is hereby struck out with costs to the respondent.
p. 2Disposition - striking out appeal for non-compliance
Article 159 (2) (b) of the Constitution of Kenya 2010 and sections 3 and 19 of the Environment and Land Court 2015 [2011] stipulate that justice shall not be delayed.
p. 2Expeditious disposal of justice

Issues in the judgment

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minor

The judgment cites 'sections 3 and 19 of the Environment and Land Court 2015 [2011]' with contradictory year references (2015 and 2011) and omits the word 'Act'

minor

The respondent is not named in the judgment, which refers only to 'the respondent'

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, "Toncap Investment v LN Property Development Co Limited (Environment and Land Appeal E004 of 2023) [2024] KEELC 5041 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5041/eng@2024-07-03

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