Star Transport Co. Ltd v Ali Mwinyi Mvita [2016] KECA 401 (KLR)
The bottom line
#The Court of Appeal refused to pause a Mombasa High Court eviction and rent judgment, partly because the tenant owed over seven years of unpaid rent.
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
- 2.Whether, if the intended appeal succeeds, it will be rendered nugatory unless stay of execution is granted
- 3.Whether the applicant's conduct disentitles it from the equitable relief of stay of execution
Key legal issues
#Whether the intended appeal was arguable
The three issues raised (periodic tenancy, controlled tenancy under Cap 301, and verbal renewal of the lease) were arguable.
The court applied the settled test that an arguable appeal is not one which must necessarily succeed; it suffices that the appeal raises even one bona fide issue deserving full consideration. The applicant's three grounds met that threshold, though the court made no definitive findings on them.
Whether the appeal would be rendered nugatory without a stay
The applicant failed to demonstrate nugatory-ness: the decree was reversible and the monetary award refundable.
The applicant did not allege the respondent was incapable of refunding the sums awarded, and possession could be restored if the appeal succeeded. Damages could also adequately compensate. Nugatory-ness depends on the circumstances of each case, with reversibility and compensability as primary considerations.
Whether the applicant's conduct barred equitable relief
The applicant's non-payment of rent for over 93 months disentitled it from the equitable remedy of stay.
Stay of execution is an equitable remedy. Following its own prior decisions, the court held that a party seeking equitable relief must conduct itself in a manner meeting the approval of a court of equity; the applicant's undisputed failure to pay rent for over 93 months weighed heavily against granting the orders sought.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory-ness limbs; satisfying only one will not suffice.
- An arguable appeal need not be one that must succeed; a single bona fide issue suffices.
- Nugatory-ness turns on reversibility of what is to be stayed or adequacy of damages.
- Stay of execution is an equitable remedy denied to a party whose conduct disentitles them from equitable relief.
- In a rule 5(2)(b) application the court must not make definitive findings on the disputed issues.
Court orders
#- 1.The application for stay of execution pending the hearing and determination of the intended appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCC No. 350 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court decree (vacant possession, Kshs 21,300 rent arrears and mesne profits) pending the intended appeal
The appeal was arguable, but the applicant failed to demonstrate that the appeal would be rendered nugatory since the decree is reversible and the respondent can refund; the applicant's failure to pay rent for over 93 months also disentitled it from equitable relief.
Costs
The application is 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.
In the event, this application must fail and the same is dismissed with costs to the respondent. It is so ordered.
The applicant is obliged to satisfy both of those conditions; satisfying only one will not suffice.
It is simply an appeal, which raises even a single bona fide issue that deserves to be fully considered by this Court
The primary consideration is whether, if what is sought to be stayed were to happen, it is reversible and if not whether the applicant can be adequately compensated by damages.
An equity relief will not be granted to a party who by his conduct has shown himself to be underserving of such a relief.
Issues in the judgment
#The applicant is referred to as 'the applicant' and as 'the appellant' for the respondent's submission inconsistently: 'it was submitted that the intended appeal was not arguable because the appellant was wound up in 2003', though the applicant was the party said to have been wound up; also 'the applicant does not dispute that it has not paid rent to the applicant for a period now longer than 93 months' misdescribes the payee, which should be the respondent.
Citation of Stanley Kangethe Kinyanjui v. Tony Ketter appears as 'CA. No. 31 0f 2012', apparently a typographical slip for 'of'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Star Transport Co. Ltd v Ali Mwinyi Mvita [2016] KECA 401 (KLR)", Case Analysis (2016). Civil Application No. 92 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/401/eng@2016-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.