AO Menya v McCreas Ltd

Court of Appeal, Nairobi 28th April 1978

Wambuzi JA (in chambers)

Civil Application No NAI 3 of 1978

Time - extension of time limit - grounds for extension - inadvertence on part of advocate - no sufficient reason to extend time for filing notice of appeal - Court of Appeal for East Africa Rules 1972, rule 4.

When a party’s advocate, or his clerk, fails to lodge a notice of appeal to the Court of Appeal within the fourteen days allowed by reason of inadvertence, the party does not have a sufficient reason under rule 4 of the Court of Appeal for East Africa Rules 1972 for an extension of time in which to file the notice.

Commissioner of Transport v Attorney-General of Uganda [1959] EA 329, Ngoni Matengo Co-operative Marketing Union v Alimohamed Osman [1959] EA 577, Northern Province Labour Utilisation Board v Commissioner of Income Tax [1960] EA 1015, Kiboro v Posts & Telecommunications Corporation [1974] EA 155 and Shah Meghji Mulji Ltd v Shah Kanji Mulji (unreported) considered.

Cases referred to in judgment:

1. Abdul Aziz Ngoma v Mungai Mathayo [1976] Kenya LR 61, EACA.
2. Bray (Venonah Magaret) v Bray (Raymond Jack) [1957] EA 302, High Court of Uganda.
3. Commissioner of Transport v Attorney-General of Uganda [1959] EA 329, EACA.
4. Esso Standard Eastern Inc v Income Tax [1971] EA 127.
5. Kiboro v Posts & Telecommunications Corporation [1974] EA 155, EACA.
6. Mugo v Wanjiru [1970] EA 481, EACA.
7. NAS Airport Services Ltd v Attorney General of Kenya [1959] EA 53, EACA.
8. Ngoni-Matengo Co-operative Marketing Union v Alimohamed Osman [1959] EA 577, EACA.
9. Northern Province Labour Utilisation Board v Commissioner of Income Tax [1960] EA 1015, High Court of Tanzania.
10. Pollok House Ltd v Nairobi Wholesalers Ltd (No 2) [1972] EA 172, EACA.
11. Shah Meghji Mulji Ltd V Shah Kanji Mulji (unreported) Civil Appeal No 51 of 1973, EACA.

Application

AO Menya applied to the Court of Appeal (Civil Application No NAI 3 of 1978) for an extension of time in which to file a notice of appeal from a judgment of Kneller J in the High Court of 23rd December 1977 (in Civil Case No 1416 of 1976) in favor of McCrease Ltd, the respondent to this application. The facts are set out in the judgment.

AI Hayanga for the Applicant.

JOO Achungo for the Respondent.

Dolat Karim Waljee v S Rose

Court of Appeal for East Africa, Nairobi 12th January 1976

Wambuzi P, Law V-P & Mustafa JA

Trespass – trespass to land – proceedings by landlord – claim for possession and mesne profits.

Landlord and tenant – tenancy – abandonment – acts constituting – abandonment of controlled tenancy under Landlord and Tenant (Shops, Hotels and Catering Establishments) Act

The respondent was the lessee of certain premises. He granted a subtenancy to D for business purposes which was a controlled tenancy within the protection of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. After D’s death intestate in 1971, no application was made for a grant of letters of administration. Nevertheless, two of D’s sons made arrangements to wind up his business and the respondent agreed orally to allow them to continue to use the premises on a monthby- month basis at the same rent. In April 1972, the respondent received a cheque for the rent from the appellant who claimed to be in occupation as sub-tenant of the respondent. The respondent instituted proceedings against the appellant for possession. The appellant asserted that she had purchased some of D’s business equipment before his death and that he had also assigned the sub-tenancy of the premises to her. The Court found that no such assignment occurred before D’s death and that the appellant was in occupation as a trespasser; an order was made that the appellant should vacate the premises and make payment of the mesne profits. On appeal,

Held:

That the appeal would be allowed; no order could be made for the termination of a controlled tenancy except in accordance with the procedure laid down by the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act and there was no evidence of any such order having been made; further, regardless of whether the appellant was properly a licensee or a trespasser, the respondent could only proceed against her for trespass upon proof of actual damage to the reversion and the appropriate remedy in an action in trespass was damages, not an order for possession and mesne profits. Observations on the abandonment or surrender of a controlled tenancy.

No cases were cited in the judgments.

Appeal

Dolat Karim Waljee trading as Ibrahim & Sons appealed to the Court of Appeal for East Africa (Civil Appeal No 34 of 1975) against the decision of Miller J in the High Court at Nairobi on 31st October 1974 (Civil Case No 987 of 1972) in which he made an order for possession of certain premises and the payment of mesne profits in favour of the respondent, S Rose. The facts are set out in the judgment of Wambuzi P.

DN Khanna (instructed by Khanna & Co) for the Appellant.

DWS Deverell (instructed by Kaplan & Stratton) for the Respondent.

Cur adv vult.