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Court of AppealDismissedCivil Appeal (Application) 201 of 2009 (UR 138/2009)

Forward Mobiles Limited v Gatma Holdings Limited [2009] KECA 92 (KLR)

Court of Appeal of Kenya
16 October 2009
1,009 words in judgment
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The bottom line

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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

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Executive summary

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Forward Mobiles Limited, a tenant of Gatma Holdings Limited under a six-year lease of premises on L.R. No. 209/2376 that expired on 30th September 2007, continued in occupation claiming a periodic tenancy or holding over. The High Court (Khaminwa, J.) struck out its defence and entered summary judgment for vacant possession on 16th June 2009, giving it thirty days to vacate. The applicant then moved the Court of Appeal at Nairobi under rule 5(2)(b) of the Court of Appeal Rules for stay of execution pending an intended appeal, contending that its defence raised triable issues and that it was a protected tenant under section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301, so that the High Court lacked jurisdiction. The court, per a single judgment of the full bench (Tunoi, Aganyanya and Visram, JJ.A.), restated the twin principles for stay: arguability of the intended appeal and the nugatory-ness of its success. It found the appeal not arguable, noting the lease stipulated its own termination and the respondent had expressly notified the applicant by letter of 3rd October 2007 that the lease would not be renewed. The court held that section 2 of Cap 301 did not assist the jurisdictional argument, and that in any event the applicant had shown no irreparable loss incapable of compensation by damages. The application was dismissed with costs. The High Court's decree therefore remains intact and enforceable.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 2.Whether the intended appeal, if successful, would be rendered nugatory unless stay of execution is granted
  3. 3.Whether the superior court correctly exercised its discretion in striking out the applicant's defence and entering summary judgment

Key legal issues

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01

Arguability of the intended appeal

Holding

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.

Reasoning

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.

p. 2
02

Nugatory-ness and irreparable loss

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Application for stay of execution dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

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

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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

p. 2

Costs

Application dismissed with costs to the respondent

Quotable passages

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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.
p. 2Twin principles for stay pending appeal
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.
p. 2Arguability threshold not met
This application has no merit and we order it to be dismissed with costs.
p. 2Final orders - dismissal

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.