Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in judgment· [1979] KECA 22 (KLR)

Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR)

Court of Appeal
16 July 1979
MJMadan JAMJMiller JAPJPotter JA
986 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a stay of execution cannot be refused just because a judge thinks another remedy would be better.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi, delivered by Madan JA on July 16, 1979, with which Miller and Potter JJA agreed, on an application under Order XLI rule 4 of the Civil Procedure Rules for a stay of execution pending appeal. The High Court had on January 9, 1979 dismissed the applicant's application for prerogative orders of Prohibition and Mandamus directed at the Nairobi Rent Restriction Tribunal, rescinding a temporary order of prohibition granted on June 22, 1978, and had refused a stay. The High Court judge had reasoned that a 'linear appeal' under Sections 8(2) and 35(2) of Cap 296 offered the shortest route to finality and that the applicant's position would not be irretrievably changed. Madan JA held that a judge is a judge whether newly appointed or experienced, and that a stay which would otherwise be granted must not be refused merely because the judge considers a better remedy will become available at the conclusion of proceedings. Applying Wilson v Church (No 2), Erinford Properties v Cheshire County Council and Attorney General v Emerson, the court held that the guiding principle is that an appeal, if successful, should not be rendered nugatory. Finding special circumstances in the large amount of rent in dispute and the applicant's undoubted right of appeal, the court granted the stay pending determination of the appeal, conditional on the applicant depositing Kshs 60,000 in court within thirty days as security, failing which the stay would lapse automatically. Costs of the application were made costs in the appeal.

Key legal issues

#
01

Whether a stay of execution pending appeal should be granted notwithstanding the High Court judge's view that a 'linear appeal' would be a better remedy

Holding

The court granted the stay, holding that a stay otherwise warranted must not be refused merely because the judge thinks a better remedy will be available later; the guiding principle is that a successful appeal should not be rendered nugatory.

Reasoning

Madan JA held that judges, whether newly appointed or experienced, are equally dependable and act on consecrated principles. The refusal below rested on the judge's view that an appellate path under Sections 8(2) and 35(2) of Cap 296 offered the shortest route to finality. The Court of Appeal rejected this as a ground for refusing a stay: the court's discretion must be exercised so that an appeal, if successful, is not nugatory. Special circumstances existed - a large amount of rent in dispute and an undoubted right of appeal - justifying the stay on terms of security.

p. 2
02

The test for granting a stay of execution

Holding

The discretion to grant or refuse a stay must be judged by the particular circumstances of each case, with the general rule that the court exercises its discretion so as not to prevent a successful appeal from being nugatory.

Reasoning

The court adopted the English authorities: Brett LJ in Wilson v Church (No 2) that the court ought to exercise its best discretion so as not to prevent the appeal, if successful, from being nugatory; Cotton LJ's statement that when a party is appealing the court ought to see the appeal, if successful, is not nugatory; and Megarry J in Erinford Properties, followed by the principle in Attorney General v Emerson that the court will grant a stay where special circumstances so require.

p. 2

Legal principles established

#
  • A stay which would otherwise be granted ought not to be refused because the judge considers that a better remedy will become available to the applicant at the conclusion of the proceedings.
  • The overriding consideration in granting or refusing a stay is that the appeal, if successful, should not be rendered nugatory.

Court orders

#
  1. 1.Stay of execution granted pending determination of the appeal against the decision dated January 9, 1979
  2. 2.Applicant to deposit in court within thirty days the sum of Kshs 60,000 as security for due performance of such decree or order as may ultimately be binding upon him
  3. 3.Failing the deposit, the stay shall lapse without a further order of the court being necessary
  4. 4.Costs of the application to be costs in the appeal
On appeal from
High Court
Not stated in judgment
Jurisdiction invoked
Order XLI rule 4 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR)", Case Analysis (1979). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/22/eng@1979-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.