Forward Mobiles Limited v Gatma Holdings Limited [2009] KECA 92 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a tenant's eviction, ruling that the planned appeal had no realistic chance of success.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable (not frivolous)
- 2.Whether the intended appeal, if successful, would be rendered nugatory unless stay of execution is granted
- 3.Whether the superior court correctly exercised its discretion in striking out the applicant's defence and entering summary judgment
Key legal issues
#Arguability of the intended appeal
The intended appeal was not arguable; section 2 of the Landlord and Tenant Act did not assist the applicant on jurisdiction given the lease's stipulated determination and notice of non-renewal.
The lease stipulated its own determination date and the respondent corresponded before and after expiry, including a letter of 3rd October 2007 stating it would not renew. The court therefore found the protected-tenancy/jurisdiction argument unpersuasive and declined to find the appeal arguable, making the nugatory inquiry unnecessary.
Nugatory-ness and irreparable loss
Even on the alternative assumption, the applicant failed to show irreparable harm or that damages could not compensate, or that its business could only operate from the premises.
The court considered whether the applicant would suffer irreparable loss if evicted pending appeal. It found no demonstration that any loss could not be compensated by damages, nor that the applicant's type of business could only be carried on from the respondent's premises, defeating the nugatory prong as well.
Legal principles established
#- An applicant for stay of execution pending appeal under rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that it would be rendered nugatory if the stay is not granted.
- Where an intended appeal is found not arguable, the nugatory-prong need not be determined; and the applicant must still show irreparable loss not compensable by damages.
- Orders on stay applications are fact-specific and an appellate court will not interfere absent misdirection in the exercise of the lower court's discretion.
Court orders
#- 1.Application for stay of execution dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- H.C.C.C. No. 563 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court decree (vacant possession, 30 days to vacate) pending intended appeal
The intended appeal was found not arguable and, in any event, no irreparable loss incapable of compensation by damages was shown; the High Court's discretion was properly exercised
Costs
Application dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a stay of execution order can issue if the applicant satisfies the usual twin principles which must govern the application, that is to say; that the intended appeal is arguable or, put it differently, that it is not frivolous, and secondly, that the intended appeal, if successful would be rendered nugatory unless the stay is granted.
In this regard we are not persuaded this appeal is arguable. And having so found it may not be necessary for us to make a finding on the nugatory aspect.
This application has no merit and we order it to be dismissed with costs.
Issues in the judgment
#The judgment gives two different dates for the superior court's decision: the heading and body say the decision was dated 10th June 2009 while the body and the stay application refer to 16th June 2009.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Forward Mobiles Limited v Gatma Holdings Limited [2009] KECA 92 (KLR)", Case Analysis (2009). Civil Appeal (Application) 201 of 2009 (UR 138/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/92/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.