Equip Agencies Limited & 5 Others v Phoenix Properties Limited
The bottom line
#Kenya's Court of Appeal refused to halt a Ksh. 23.7 million judgment against tenants who had not paid rent for over ten years.
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 and not frivolous
- 2.Whether, if stay is not granted, the success of the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The court found the intended counterclaim point not arguable since no counterclaim was on record before either court
The applicants argued the trial judge ignored a pending Chamber Summons for leave to amend the defence and introduce a counterclaim. The court held no orders were sought against the trial judge, no law stops a trial court from concluding a hearing while an application pends, and no counterclaim existed on record; a counterclaim is an independent cause of action subject to limitation, so the point was not arguable.
Whether the intended appeal would be rendered nugatory absent stay
The nugatory limb failed; the applicants' concession of non-payment of rent for over 10 years meant they should not deny the respondent the fruits of its judgment
The applicants claimed eviction and a colossal judgment sum would drive them out of business. Having conceded they had not paid rent since at least 2005 (the respondent said since 2002), the court was not satisfied the appeal would be rendered nugatory, holding that a party in continuous rent arrears should not be denied the fruits of its judgment.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable intended appeal and that the appeal's success would be rendered nugatory absent stay
- A counterclaim is an independent cause of action, effectively a separate suit, subject to the law on limitation of actions
Court orders
#- 1.The Notice of Motion dated 15th November 2018 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Milimani
- ELC Suit No. 287 of 2005
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)
Relief refused
#Stay of execution of the judgment and decree of the Environment and Land Court pending the intended appeal
The intended appeal was not shown to be arguable on the counterclaim point and the nugatory limb failed, the applicants having conceded non-payment of rent for over 10 years
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.
For the foregoing reasons, we come to the conclusion that the Notice of Motion dated 15 th November 2018 has no merit and is hereby dismissed with costs.
These two limbs must both be demonstrated and it would not be enough that only one is demonstrated
a counterclaim is an independent cause of action and subject to the law on limitation of actions
We are not aware as we have not been informed of any law or procedure that stops a trial court from proceeding with the hearing and conclusion of the dispute, whilst a pending application exists on the file.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Equip Agencies Limited & 5 Others v Phoenix Properties Limited", Case Analysis (2019). Civil Application No. NAI. 332 of 2018 (UR 269 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1030/eng@2019-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.