https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4234

Mwangi v Kusima (Environment and Land Miscellaneous Application E006 of 2026) [2026] KEELC 4234 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4234 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Miscellaneous Application E006 of 2026 CN Mugambi, J July 9, 2026 Between John Mwangi Applicant and Heldah Kusima Respondent Ruling 1.The application dated 5.3.2026 seeks orders that leave be granted to the Applicant to file appeal out of time. 2.The application is supported by the affidavit of Mr John Mwangi the Applicant wherein it has been deponed that the Applicant was not aware of the proceedings in BPRT Case No. E099 of 2023 as he was never served and only came to learn about the case when it was used to determine that the Applicants BPRT Case No. E14 of 2023 was res-judicata. 3.The Applicant has also deponed that a determination against him without being heard is a violation of his constitutional right to a fair hearing and leaving the order intact will adversely affect the actions he intends to take in appealing and or reviewing the ruling in BPRT E154 of 2023. 4.The Applicant further depones that he was not aware of the judgment as he was never served with the notice of judgment and that further the Applicant delayed filing the appeal since he was not supplied with the proceedings. 5.The application is opposed. The Respondent Helda Kusimba has sworn an affidavit in reply wherein she has deponed that her husband was the registered owner of land parcel No South Teso/Angoromo/3046 (the suit property). 6.The Respondent depones in the affidavit that the suit at the Tribunal was heard and concluded and the Applicant/tenant ordered to vacate within seven (7) days. That prior to filing the case at the Tribunal, the Respondent duly served the Applicant with the Statutory notice under Section 4 of Cap 301 (The Landlord and Tenant, Shops, Hotels, and Catering Establishments) Act but the Applicant did not oppose or respond to the said notice. 7.It is further deponed by the Respondent that the Tribunal record clearly indicates that hearing notices were duly issued to all parties and pursuant to the Court orders, the Applicant was evicted from the suit premises on or about August 2023. That thereafter the Applicant instituted Case No. BPRT E154/2023 where the Respondent was joined as an interested party and after she filed a Preliminary Objection, the same was allowed and the Applicants’ suit was dismissed for being res-judicata. 8.The Respondent depones that the Applicant has never sought to set aside or review the orders in BPRT E099 of 2023 and that the Applicants allegations that he was not served is false as the orders were brought to his attention during the proceedings in BPRT E154 of 2023. Analysis and Determination: 9.The only issue for determination in this application is whether the Applicant is entitled to the orders sought in his application, to file and appeal against the decision of the Business Premises Rent Tribunal in Tribunal Case No. E099 of 2023 delivered on 17.8.2023 out of time. 10.The power of the Environment and Land Court to extend time within which to file appeals against decisions of the Business Premises Rent Tribunal are to be found at Section 15(1) of Cap 301 which provides as follows:15.Appeal to Court:(1)Any party to a reference aggrieved by any determination or order of a Tribunal made therein may, within thirty days after the date of such determination or order, appeal to the High Court:Provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.” 11.While dealing with an application for extensions of time, the Court of appeal in the case of Leo Sila Mutiso -v- Hellen Wangari Mwangi (1999) 2 EA 23 set out the following principles:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are; first the length of the delay; second, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent if the application is granted.” 12.Further, in the case of Nicholas Kiptoo Arap Korir Salat -v- Independent Electoral And Boundaries Commission & 7 Others 2014 eKLR, the Supreme Court listed the following as the factors which the Court should consider in such an application:1.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;2.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;3.Whether the Court should exercise the discretion to extend time is a consideration to be made on a case to case basis;4.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5.Whether there will be any prejudice suffered by the Respondents if the extension is granted;6.Whether the application has been made without undue delay; and7.Whether in certain cases like election petitions, public interest should be a consideration for extending time.All the above conditions must be satisfied before the order of extension of time to appeal is allowed. 13.The decision of the Tribunal in BPRT in Case No. E099 of 2023 was delivered on 17.8.2023. The Applicant’s major complaint was that he was not aware of the proceedings in the said case as he was never served. The Applicant further contends that he was not served with notice of the judgment against him. 14.Was the Applicant served with the pleadings in Case No. E099 of 2023 and or with the judgment thereof?From the proceedings of the Tribunal at page 1 on 17.8.2023, the landlady (Respondent herein) was present and the Applicant (tenant) was absent. It is to be noted that previously on 10.9.2023, (sic) 10.8.2023 actually both parties were absent but the Tribunal made the following order:“Hearing Notice to issue by BPRT office Kakamega to both parties”When the matter came up for hearing on 17.8.2023, the Tribunal did not make any inquiries as to whether or not indeed the Applicant had been served to appear before the Tribunal on the said date. The mere fact that the landlady was present was not evidence that the tenant (Applicant) had been served to appear on that day. 15.On 17.8.2023, the Tribunal without first ascertaining whether the tenant (Applicant) had been served, proceeded to make the following orders:“I do note that there is a notice issued under Section 4 to the Tenant by the Landlady. The Tenant has not filed any Reference to oppose the notice dated 10.5.2022 from the Landlady’s submissions, has continued to be in arrears.Section 6 of the Act clear on what ought to happen after a receiving party ought to do after being served with a notice under Section 4.None was done by the tenant. Reference dated 7.6.2023 is hereby allowed with costs of Kshs.20,000 to the Landlady.Tenant to vacate the premises within 7 days’ failure to which the Landlady shall evict with the help of the OCS Busia (K) Police station.Reference is settled.” 16.It is not clear, in the absence of an affidavit of service, how the Tribunal arrived at the conclusion that the Applicant was served with the notice under Section 4 of the Act and thereby proceeded to make adverse orders against the tenant. 17.In the circumstances, the allegations by the Applicant that he was not served are not idle, I find truth in them in the absence of any affidavits of service filed by the Respondent in the proceedings at the Tribunal. 18.The Applicant filed BPRT NO E154 of 2023 sometimes in October 2023. On or about 10.1.2025, the Respondent filed an application in the said suit seeking an order that the suit be declared res-judicata due to the final determination in BPRT E099 of 2023. The Applicant herein filed the grounds of opposition on 15.1.2025. The application for extension of time was filed on 5.3.2026. In my view, the Applicant herein became aware of the existence of BPRT Case No. E099 of 2023 on or about 15.1.2025 when he filed his grounds of opposition against the Respondent’s Motion which was seeking to declare his suit res judicata. I find the period from January 2025 to March 2026 to constitute inordinate delay in filing the application. The Applicant, if he had been diligent enough, would have been expected to file his application for the extension of time sooner than March 2026. 19.I do note that the Respondent has deponed in her affidavit that she has already given out the suit premises to another tenant, the Applicant herein having been evicted from the suit premises on or about August 2023. In these circumstances, I am not convinced that the appeal would stand (possibly) chances of succeeding and mere especially due to the fact that there no longer exists any landlord tenant relationship between the parties. The Applicant has not challenged the deposition by the Respondent that he was evicted from the suit premises. In these circumstances, I do find that allowing the application would occasion great prejudice to the Respondent. 20.In concluding this ruling, it is my finding that the length of the delay in bringing the application was inordinate, and although the reason for the delay is said to have been lack of service, the Applicant has not explained why it took him approximately fifteen months to bring his application after he became aware of the proceedings in Case No. E099 of 2023. It is my further finding that the Applicants appeal does not stand high chances of succeeding and that granting the orders sought would expose the Respondent to prejudice. 21.In the circumstances, I do find that the application dated 5.3.2026 has no merits and the same is dismissed with costs to the Respondent. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT ON THIS 9TH DAY OF JULY 2026.C. MUGAMBIJUDGE