[2004] KEHC 2157 (KLR)
The court held that the appellant failed to provide any reason, either in the application, supporting affidavit, or supplementary affidavit, for not filing the appeal within the statutory period prescribed by Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The court...
Source-derived case information.
- Citation
- [2004] KEHC 2157 (KLR)
- Parties
- Appellant: Najmudin (Najmi) Kassam; Respondent: Shah & Patel Industries
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 21 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Appeal struck out as filed out of time without sufficient reason; costs awarded to respondent; interim stay order vacated.
- Judges
- ARM Visram
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Stay of Execution, Landlord and Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Najmudin (Najmi) Kassam
Appellant
Shah & Patel Industries
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the appellant provided sufficient reason for failing to file the appeal within the statutory period.
- 2 Whether leave to appeal out of time should be granted in the absence of any explanation for the delay.
- 3 Whether the application for stay of execution is tenable when the appeal itself is out of time.
Ratio Decidendi
The court held that the appellant failed to provide any reason, either in the application, supporting affidavit, or supplementary affidavit, for not filing the appeal within the statutory period prescribed by Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. The court emphasized that the law requires a sufficient reason to be offered for such an extension, and in the absence of any explanation, the application for leave to appeal out of time must fail. Consequently, the court found no need to consider the issue of stay of execution or any other matters, as the appeal itself was hopelessly out of time and without merit.
Court Disposition
Appeal struck out as filed out of time without sufficient reason; costs awarded to respondent; interim stay order vacated.
Orders
- The appeal is struck out with costs to the respondent.
- The respondent is awarded the costs of the application.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
H.C. CIVIL CASE NO. 159 OF 1994
NAJMUDIN (NAJMI) KASSAM :::::::::::::::::::::::::::::::::::::: APPELLANT
VERSUS
SHAH & PATEL INDUSTRIES ::::::::::::::::::::::::::::::::::: RESPONDENT
RULING
Section l5(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap.301) (hereinafter referred to as “the Act”) provides as follows:
“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” From the face of the Memorandum of Appeal filed herein on January l5, 2004, the decision of the Tribunal appealed from is dated November 20, 2003. The appeal was, therefore, filed out of time. On the same day the appeal was filed, the Appellant also filed an application under Section 15 of the Act, Order XLI Rule 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (Cap.2l). In the application the Appellant sought, in the main, for leave to file his appeal out of time and for stay of execution of the Judgment and decree of the Tribunal against which he intended to appeal from. No ground or reason was offered in the application or in the supporting affidavit and not even in the supplementary affidavit filed on behalf of the Appellant as to why the appeal was not filed within the statutory period. At the hearing of the application, Mr. Issa Counsel for the Appellant did not even pretend to suggest that there was any reason why the appeal was not filed within time. I agree with Mr. Waiganjo, Counsel for the Respondent, that for one to be granted leave to appeal out of time, he must offer a sufficient reason as to why he did not file the appeal within time. The proviso to Section 15(1) of the Act itself stipulates so. There are numerous authorities on this point and I do not need to reproduce any here, even though Mr. Waiganjo cited one before me.
On the foregoing conclusion alone, I do not see any need to go into the issue of stay pending appeal or any other matter since the appeal itself is hopeless as it was filed out of time without any reason
and is hereby struck out with costs to the Respondent. The Respondent will also have the costs of the application. The interim order for stay entered herein is hereby vacated.
Dated and Delivered at Nairobi this 8th day of March 2004.
ALNASHIR VISRAM
JUDGE