[2013] KEHC 2301 (KLR)
The court held that the appeal was filed outside the statutory thirty-day period provided under Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Cap 301, without leave of the court. As a result, there was no competent appeal before the court. Consequently, the Notice of Motion...
Source-derived case information.
- Citation
- [2013] KEHC 2301 (KLR)
- Parties
- Appellant: Mohamed Salim Bashir; Respondent: Shami Trading Co. Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 18 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion for Stay of Execution and Preliminary Objection
- Outcome
- Appeal and Notice of Motion struck out as incompetent; costs awarded to Respondent; any stay of execution vacated.
- Judges
- MM Kasango
- Legal Topics
- Appeal Timelines, Leave to Appeal, Business Premises Rent Tribunal, Striking Out Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Salim Bashir
Appellant
Shami Trading Co. Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion for Stay of Execution and Preliminary Objection
Legal Issues
- 1 Whether the appeal was filed within the statutory period prescribed by Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act.
- 2 Whether the court can entertain an appeal filed out of time without leave.
- 3 Whether the Notice of Motion for stay of execution is competent where the appeal itself is incompetent.
Ratio Decidendi
The court held that the appeal was filed outside the statutory thirty-day period provided under Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act, Cap 301, without leave of the court. As a result, there was no competent appeal before the court. Consequently, the Notice of Motion seeking stay of execution, which was premised on the existence of a valid appeal, was also incompetent. The court therefore struck out both the appeal and the Notice of Motion with costs to the Respondent, and vacated any stay of execution previously granted.
Court Disposition
Appeal and Notice of Motion struck out as incompetent; costs awarded to Respondent; any stay of execution vacated.
Orders
- The Notice of Motion dated 25th February 2013 is struck out with costs to the Respondent.
- The appeal is struck out with costs to the Respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 18 OF 2013
MOHAMED SALIM BASHIR …………………….…………….. APPELLANT
V E R S U S
SHAMI TRADING CO. LIMITED ……………………………. RESPONDENT
RULING
The Appellant filed a Memorandum of Appeal in this matter appealing against the decision of the Chair of the Business Premises Rent Tribunal (BPRT) in case No. 131 of 2012. That decision was made by the Chair on 14th September 2012. The Appellant filed his Memorandum of Appeal on 25th February 2013.
The Appellant is now before this Court with a Notice of Motion dated 25th February 2013 urging the Court to grant him stay of execution of the orders of BPRT pending the hearing and determination of this appeal. The Appellant and the Respondent filed their written submissions in respect to that Notice of Motion.
There is only one objection raised by the Respondent that I intend to deal with in this Ruling. The Respondent objects to the prayers sought in that Notice of Motion on the basis that there is no competent appeal before this Court. The Respondent submitted that the Appellant filed this appeal in contravention of Section 15 of The Landlord and Tenant (Shops, Hotels and Catering Establishment) Act Cap 301. That Section provides as follows-
“(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.”
The BPRT's decision which is challenged by this appeal was issued on 14th September 2012. The thirty days period provided under the above Section ran out on 15th October 2012. The Appellant as stated before filed his Memorandum of Appeal on 25th February 2013 without the leave of this Court. It therefore follows that indeed what is filed by the Appellant is incompetent and cannot be regarded as an appeal as provided under Section 15. It therefore follows that the Notice of Motion dated 25th February 2013 having been premised on a non-existing appeal must fail. Similarly, this appeal shall also be struck out for the same reason.
I grant the following orders-
The Notice of Motion dated 25th February 2013 together with this appeal are hereby struck out with costs to the Respondent.
Any stay of execution granted hereof is hereby vacated.
Dated and delivered at Mombasa this 20th day of September, 2013.
MARY KASANGO
JUDGE