[2012] KEHC 4311 (KLR)

Editorial Summary

1. Civil Appeal

2. Civil Practice and Procedure

3. Subject of Tribunal case

BUSINESS PREMISES RENT TRIBUNAL

3. 1 Assessment of rent

3. 2 Three tenants, rent increase through theassessment.

3. 3 tenants find rent increase inordinately high.

3. 4 Two out of the three tenants file appeal in thesame file at the High Court (Civil Appeal 258/11)

3. 5 Court held, whereas an application for stay ofexecution is gratned, the procedure of filing oneappeal for two tenants was irregular(18th July 2011 Ang’awa J)

3. 6 One tenant amends memo of appeal and strikesout name from the first appeal (29th September 2011)

3. 7 That tenant files Misc application 369/11 and praysfor leave to file appeal out of time, to correctirregularity.

4. Application for leave to appeal out of time

Dated 11th August 2011

i) Application based on the court ruling of18th July 2011, Ang’awa J.

ii) Leave be granted to file appeal out of time.

5. In reply.

a) Application opposed.

b) Advocate made mistake, he should bearhis own negligence.

c) Application be dismissed.

6. Held:

i) Application granted.

ii) Leave to file appeal out of timewithin 21 days.

7. Case Law:

By the appellant:

a) Mwaniki Njoroge Kamau & Another

Vs

Lee Shree Pong

Civil Application No. 122/98

LLR 4114

Gicheru JA

b) Touring Cars (K) Ltd – Vs – Ashok N. Mankaji

Civil application 78/98

LLR 725 CAK

Omolo JA

c) S.D.A. Church (E.A.) Ltd & Another

Vs

M/s Masosa Construction Co.

Civil Application 349/05

Waki JA

By the respondent:

a) Nimrod Wangagu – Vs – A.F.C. & Another

HCC 50/02 Kitale

Ombinja J

b) Nyokabi Wachira – Vs – Naomi Njoki

(2006) eKLR

Okwengu J

c) Joseph Kibe Mungai (Guradia R L Shah)

Vs

John Njau Njuguna & Another

CA 209/07 (2008 Eklr)

Deverell JA

d) Muriithi Richard – vs – Juma Kassim & Another

CA 117/10 Mombasa

Azangalala J

e) Sulmac Kenya Ltd – Vs – Anthony Owino

(2006) eKLR

L. Kimaru J

f) Egerton University – Vs – Diana Luganje (suing as admin)

(2006) eKLR

L. Kimaru J

8. Advocates:

i) Kamere instructed by M/s Kamere & Co Advocates for

appellant/applicant/tenant

ii) E J Mutemi instructed by Nzamba Kitonga & Co Advocates for

respondent/landlord

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI MILIMANI LAW COURT

MISCELLANEOUS APPLICATION 369 OF 2011

KINYUA GATHUITA T/A

MAKON FREIGHT AGENCIES ……………………… APPELLANT/TENANT

VERSUS

GICHUGU HOUSING CO-OP

SOCIETY LTD ………………………...……… RESPONDENT/LANDLORD

(Being an appeal arising from the judgment of Hon. D Mochache – Chairperson Business Premises Rent Tribunal inl Case No. 885, 980 & 977 of 2011 dated

3rd June 2011 at Nairobi)

R U L I N G

Application for Leave to file appeal

Out of time

I.BACKGROUND

1. The genesis of the subordinate matter arose from the Business Premises Rent Tribunal. The building in question LR No. 209/138/90 Thiba House along Duruma Road, Nairobi, a commercial property has seven tenants who rents were being reviewed by way of an assessment.

A total of seven tenants were affected. Four in the basement, three on the front ground floor and one on the 1st floor. The issue before the tribunal was one of assessment of rent.

2. Only three tenants appear to have challenged the assessment. They were

2. 1Kinyua Gacuta t/a

Makon Freight Agencies

Basement floor, Shop B1

2. 2Joyce Wairimu Waithiga

Front ground floor

Shop G1

2. 3Yusuf Hussein

1st floor

The files of the three tenants were consolidated by the tribunal.

3. Being dissatisfied by the decision of the chairperson of the tribunal on the assessment of rent two out of the three tenants filed appeal in

High Court appeal case 258/11. This was M/s Makon Freight Agencies and Yusuf Hussein.

4. Joyce Wairimu Waithiga did not appeal.

5. By an application dated 14th June 2011, the two tenants sought for a stay of execution of the tribunal’s orders. Whereas the High Court granted the application for stay of execution on 18th July 2011, (Ang’awa J) the court did make comment that there ought to have been two separate appeals filed and not one file. (Even though the files had been consolidated in the subordinate tribunal.)

6. M/s Makon Freight Agencies name was struck out of the appeal by way of an amendment, voluntarily so done by the parties and leaving the name of Yusuf Hussein on record.

7. It is noted under Order 42 r 3 Civil Procedure Rules that an amendment to the memorandum of the appeal may be made before the giving of directions.

8. M/s Makon Freight Agencies now comes before this court by way of a miscellaneous application seeking leave to have the appeal, he wishes to file, be so filed out of time.

IIAPPLICATION DATED 11TH AUGUST 2011

FILED ON 18TH AUGUST 2011

9. The applicant relied on the ruling delivered on 18th July 2011 that there be separate appeals filed. The purpose of enlarging time to file appeal out of time, is to bring in place the appeal for the applicant whose rights and grounds of appeal be as agitated by the other appellant Yusuf Hussein.

10. This application was opposed by the respondents on the grounds that the mistake laid with the advocate. It therefore means that the advocate should be held liable for the mistake of filing the said appeal in one file instead of separate files. That relying on case law that now states, it is no longer the litigant who should suffer but that the advocate should hear the negligence imposed as a result of his actions. The insurance company would pay for this fault.

11. The case law relied on being:

Nimron Wanguhu – Vs – A.F.C. & Another

HCC 50/02 Kitale.

Ombinja J

Where the advocate was held to be labie for mistake of filing a misapplication instead of an appeal. An application for leave to file an appeal out of time was dismissed. The litigant was to sue the advocate in negligence.

12. The applicant’s advocate relied on several case law. One being

Touring Cars Ltd – Vs – Ashock N Mankagi

Civil Appeal No. 78/98

LLR 728 CAK

Omolo JA

where technicalities of law should not be used to clog the path of substantial justice.

13. Further that it was at the court’s discretion to grant leave to appeal out of time.

IIIFINDINGS

14. I took the priviledge of calling up file CA 258/11. The application for stay of execution had been granted because this court was of the view that a prima facie case had been made out to warrant such stay of execution.

15. The circumstances of this application has it roots in the ruling dated 18th July 2011. The appellant took directing from that said ruling emanating in this application before court.

16. I would consequently allow this application and granted the orders as prayed.

17. That leave be and is hereby given to the appellant to file appeal out of time. That the mention order of appeal be filed within 21 days of today’s date upon reading of this ruling.

18. The costs be in the appeal.

DATED THIS 22ND DAY OF FEBRUARY 2012 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i) Kamere instructed by M/s Kamere & Co Advocates for

appellant/applicant/tenant

ii) E J Mutemi instructed by Nzamba Kitonga & Co Advocates for

respondent/landlord