Kyengo & another v Watatu Development Limited (Civil Appeal E006 of 2023) [2024] KEELC 5810 (KLR)
The bottom line
#Kenya's High Court allowed an appeal filed three days late and stopped enforcement of a Kshs 6.9 million rent decree, but only if the appellant deposits a bank guarantee as security.
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 proceedings commenced by Notice of Motion are competent, i.e. whether leave to extend time can be sought without a substantive appeal on record
- 2.Whether the Appeal should be deemed as filed within time
- 3.Whether the applicant has met the prerequisites for grant of stay of execution pending appeal
Key legal issues
#Competency of an application for extension of time made by Notice of Motion alongside an appeal filed three days late
The application is properly before the court; whether one files the appeal first or contemporaneously with the extension application amounts to the same thing
A preliminary objection relying on Evans Kiptoo v Reinhard Omwonyo Omwoyo contended that a substantive appeal must precede leave. The court, persuaded by Chitembwe J in Charles N. Ngugi v ASL Credit Limited and Mugo v Wanjiru, held the two approaches are semantic equivalents; once time is enlarged the appeal is competent, and substantive justice is paramount.
Whether the delay of three days in filing the appeal was excusable
Yes - the delay was not inordinate and the applicants explained they were not notified of the delivery date of the tribunal ruling
The ruling was scheduled for 4/10/23 when the tribunal did not sit; it was instead read on 11/10/23 without notice to the applicants' counsel, who learned of it on 9/11/23 via the judiciary portal. No evidence showed notice of the new date was issued, so the counsel's ignorance of 11/10/23 was plausible, and a three-day delay is not inordinate.
Whether stay of execution pending appeal should issue
Stay granted on terms: the applicant failed to demonstrate substantial loss but stay was granted on the balance of the right to be heard, conditioned on deposit of a bank guarantee
The decree is monetary and the applicant did not show the respondent would be unable to repay if the appeal succeeded, so substantial loss was not demonstrated. However, since the applicant was prima facie not heard by the tribunal on the merits, the court balanced interests through security - the respondent itself suggested deposit of the decretal sum - and stayed execution subject to that deposit.
Legal principles established
#- A three-day delay in filing an appeal is not inordinate delay
- Extension of time under Section 79G is discretionary and must be exercised judiciously upon a reasonable and credible explanation for delay
- Where substantial loss is not demonstrated on a monetary decree, a balance of interests may be achieved through security for due performance of the decree
Court orders
#- 1.Leave is granted to the applicant to file appeal out of time against the Ruling delivered in NAIROBI BPRT/E270/2022
- 2.The applicant to file and serve his Memorandum of Appeal and Record of Appeal within fourteen (14) days hereof
- 3.Execution of the Judgment/decree in NAIROBI BPRT/E270/2022 is hereby stayed pending the hearing and determination of the appeal
- 4.The applicant to deposit with the court a Bank Guarantee for the sum of Kshs.6,951,932 within sixty (45) days hereof
- 5.In default of complying with order number four (4), the orders staying execution shall lapse and the respondent shall be at liberty to execute
- 6.That the applicant will meet the costs of this application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal (BPRT)
- NAIROBI BPRT/E270/2022
- Jurisdiction invoked
- Sections 1A, 1B, 3B and 79G of the Civil Procedure Act and Rule 42(6) of the Civil Procedure Rules
Relief refused
#Stay of execution without security
Substantial loss not demonstrated and no security offered; stay granted only on condition of deposit of a bank guarantee
Costs of the application
The court ordered the applicant to bear the costs of the application
Costs
The applicant will meet the costs of this application
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.
Leave is granted to the applicant to file appeal out of time against the Ruling delivered in NAIROBI BPRT/E270/2022
Execution of the Judgment/decree in NAIROBI BPRT/E270/2022 is hereby stayed pending the hearing and determination of the appeal.
In default of complying with order number four (4), the orders staying execution shall lapse and the respondent shall be at liberty to execute.
From the circumstances of this case, it is my view that a three days delay cannot be rendered inordinate.
As long as the law permits that time may be enlarged, this is what is paramount. Moreover, the court is enjoined to render substantive justice.
Issues in the judgment
#Applicant's citation of Section 79H of the Civil Procedure Act, which does not exist
Internal contradiction in the bank guarantee order - 'sixty (45) days'
Discrepancy between the decretal sum cited in grounds (Kshs. 6,851,932) and the bank guarantee figure ordered (Kshs.6,951,932)
Paragraph numbering error - paragraphs 12 and 13 are duplicated in the numbering
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kyengo & another v Watatu Development Limited (Civil Appeal E006 of 2023) [2024] KEELC 5810 (KLR)", Case Analysis (2024). Application dated 23/01/24 (Appeal against Ruling in Nairobi BPRT/E270/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5810/eng@2024-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.