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ELCAllowedNot stated in the judgment (appeal from BPRT Case No. 2 of 2015, Nyeri)· [2015] KEELC 43 (KLR)

Real Consult Agencies Ltd v Gerald Wachira Nguthi [2015] KEELC 43 (KLR)

High Court of Kenya
17 November 2015
1,848 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court halted a tenant's eviction pending appeal, confirming courts focus on potential loss—not appeal strength—when granting stay.

What this practically means

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Executive summary

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The applicant, a tenant trading on plot No. 5118/223 Naromoru, moved the High Court at Nyeri by notice of motion dated 30th June 2015 for stay of execution of an order of the Chairman of the Business Premises Rent Tribunal (BPRT) issued on 26th June 2015 in Tribunal Case No. 2 of 2015, together with a temporary injunction restraining eviction, an order for deposit of rent, and police enforcement. The Tribunal had struck out the applicant's complaint for want of jurisdiction, and the respondent then threatened eviction. The respondent opposed, contending that no tenancy relationship subsisted, that rent paid after lapse of the lease had been refunded, that no renewal notice was issued, and that granting the orders would force him into a new lease and infringe his property rights. The court set out Order 42 Rule 6 of the Civil Procedure Rules, 2010 and held that the applicable conditions are substantial loss, absence of unreasonable delay, and security - not the arguability of the appeal - applying Sammy Some Kosgei, Everlyn Jebitok Keter and Robert Ngaruiya Chutha. It found the application filed within a week (no delay), security offered through an undertaking to comply with directions, and substantial loss demonstrated because eviction before determination of the question whether a controlled tenancy exists could cause the applicant to unprocedurally lose its investment. The application was allowed as prayed, with conditions: the applicant to set down the appeal within ninety days, pay rent arrears and continue paying rent at the expired lease rate, or deposit rent in court if refused.

Key legal issues

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01

Whether the applicant demonstrated substantial loss justifying stay of execution and injunction pending appeal

Holding

Yes - the applicant had carried on business since 2009 and invested heavily; eviction before determination of whether a controlled tenancy exists could cause it to unprocedurally lose its investment.

Reasoning

The court accepted that the respondent had a right to terminate the lease, but noted there was a live question of law and fact whether a controlled tenancy existed between the parties. If it does, the respondent must issue the statutory notice before lawfully removing the applicant. Eviction before that determination would risk the applicant losing its investment unprocedurally, constituting substantial loss.

p. 4
02

Whether the application was made without unreasonable delay

Holding

Yes - the application was filed on 30th June 2015, barely a week after the order of 26th June 2015.

Reasoning

The court compared the date of the Tribunal's order with the filing date of the notice of motion and found an interval of about one week, which it held disclosed no delay.

p. 3
03

Whether the applicant offered security

Holding

Yes - the applicant deposed that it was ready and willing to comply with any directions of the court as conditions for the orders sought.

Reasoning

The court treated the applicant's deposition of readiness and willingness to comply with directions as sufficient offer of security, and later framed concrete conditions requiring payment/deposit of rent arrears and monthly rent.

p. 3

Legal principles established

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  • The conditions for stay of execution pending appeal are those in Order 42 Rule 6(2) of the Civil Procedure Rules - substantial loss, no unreasonable delay and security - not whether the appeal is arguable.
  • Substantial loss is the epicenter of an application for stay of execution pending appeal; without it the application fails.
  • On an application for stay pending appeal, the court does not inquire into the merits of the intended appeal.

Court orders

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  1. 1.Stay of execution of the order of the Chairman of the BPRT issued on 26th June, 2015 in Tribunal Case No. 2 of 2015 pending hearing and determination of the appeal
  2. 2.Temporary injunction restraining the respondent from evicting, locking out, harassing or interfering with the applicant's business on plot No. 5118/223 Naromoru pending the appeal
  3. 3.Applicant to prepare and set down the appeal for hearing within ninety (90) days
  4. 4.Applicant to pay pending arrears of rent and continue paying rent at the rate agreed under the expired lease pending the appeal
  5. 5.If the respondent refuses to accept rent, arrears to be deposited in court within twenty-one (21) days and monthly rent deposited on or before the 5th day of each succeeding month until the appeal is determined
  6. 6.Costs of the application to the applicant (application allowed as prayed)

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1), (2) and (6)

Cases cited (3)

  • Sammy Some Kosgei v. Grace Jelel Boit
    (2013) eKLR
  • Everlyn Jebitok Keter v. Henry Kiplagat Muge & 2 Others
    (2011) eKLR
  • Robert Ngaruiya Chutha vs. Joseph Chege Ndungu
    (2014) eKLR
On appeal from
Business Premises Rent Tribunal (BPRT), Nyeri
Tribunal Case No. 2 of 2015
Jurisdiction invoked
Appellate jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules, 2010 (appeal from a tribunal)

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, "Real Consult Agencies Ltd v Gerald Wachira Nguthi [2015] KEELC 43 (KLR)", Case Analysis (2015). Not stated in the judgment (appeal from BPRT Case No. 2 of 2015, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/43/eng@2015-11-17

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