[1998] KEHC 127 (KLR)
The court determined that since the previous appeal was struck out for procedural non-compliance and not dismissed on the merits, the appellant had not had the substance of its case heard. Given that section 15(4) of the Landlord and Tenant Act makes the High Court's decision final and precludes further appeal,...
Source-derived case information.
- Citation
- [1998] KEHC 127 (KLR)
- Parties
- Appellant: Oriental Printers & Stationers; Respondent: Rivrom Properties Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 80 of 1997
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to File Fresh Appeal After Previous Appeal Struck Out
- Outcome
- Leave granted to file a fresh appeal; interim stay of execution for 14 days; costs to the appellant.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal, Striking Out of Appeal, Business Premises Rent Tribunal, Finality of High Court Decisions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oriental Printers & Stationers
Appellant
Rivrom Properties Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to File Fresh Appeal After Previous Appeal Struck Out
Legal Issues
- 1 Whether the appellant should be granted leave to file a fresh appeal after the previous appeal was struck out for procedural non-compliance.
- 2 Whether the court has jurisdiction to grant such leave given the finality of High Court decisions under section 15(4) of the Landlord and Tenant Act.
- 3 Whether the inherent powers of the court can be invoked to allow the appeal to be heard on merit.
Ratio Decidendi
The court determined that since the previous appeal was struck out for procedural non-compliance and not dismissed on the merits, the appellant had not had the substance of its case heard. Given that section 15(4) of the Landlord and Tenant Act makes the High Court's decision final and precludes further appeal, denying leave would leave the appellant without any remedy. The court invoked its inherent powers to ensure justice and granted leave to file a fresh appeal, also granting an interim stay of execution for 14 days to allow for inter partes hearing of the application.
Court Disposition
Leave granted to file a fresh appeal; interim stay of execution for 14 days; costs to the appellant.
Orders
- Leave is granted for the appellant to file a fresh appeal.
- There shall be an interim stay of execution of the judgment of the Business Premises Rent Tribunal for 14 days.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO. 80 OF 1997
ORIENTAL PRINTERS & STATIONERS..............................PLAINTIFF VERSUS RIVROM PROPERTIES LTD......................................................................................DEFENDANT
R U L I N G
The appellant’s appeal was struck out as being incompetent on the grounds that the advocate for the appellant failed to comply with order *(b) (2) & (4) of the Civil Procedure Rules.
There is now before me an application for leave to file a fresh appeal and record of appeal against the judgment of the Business Premises Rent Tribunal dated 17th February, 1997.
I cannot and should not appear to be sitting on appeal from a decision of another court of concurrent jurisdiction. I note however the following. The appellant’s appeal was not dismissed but struck out. Therefore there was no hearing on merit. Further, this appeal was from a decision of the B.P. R. T. exercising its powers under the Landlord and Tenant Act Cap 301 Laws of Kenya. Under that Act, section 15(4), the decision of the High Court on any appeal shall be final and shall not be subject to further appeal.
That is to say, if the appellant is not granted leave to file a fresh appeal, there is no other redress. Yet the appeal was not heard on merit. Above all all, this court has inherent powers to make such orders as may be necessary for the ends of justice.
For those reasons, I grant leave for the appellant to file a fresh appeal. This should be an interim stay of execution of the judgment of the B.P.R.T. for 14 days after which counsel should argue the application inter partes. The appellant shall however pay the costs occasioned by this application.
Order accordingly.
Dated and delivered at Nairobi this 31st day of July, 1998
A. MBOGHOLI MSAGHA
JUDGE