Daniel Gicheru Karangu v Richard Gicheru Irungu [2015] KEELC 48 (KLR)
The bottom line
#A Kenyan tenant appealing a rent tribunal ruling lost his bid to delay enforcement because he showed no substantial loss and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Conditions for stay of execution pending appeal
All three conditions in Order 42 Rule 6(2) — substantial loss, no unreasonable delay, and security — must be satisfied; failure on substantial loss or security is fatal
The court adopted the reasoning in Elite Studios and Sammy Some Kosgei that the conditions are mandatory and that substantial loss is the epicentre of such applications. The applicant made only a bare assertion that execution would render the appeal nugatory, and instead of offering security, asked the court to order the respondent to repay his investment. The claim that the respondent owed him money was a matter for the appeal, not for the stay application.
Effect of delay in filing the stay application
A delay of about five weeks was not inordinate so as to justify refusing the application
The judgment was delivered on 26th June, 2015 and the application filed on 30th July, 2015. Although this was a delay of slightly more than a month, the court held that it was not so inordinate as to form a basis for refusing the orders sought. The decisive failures were the absence of substantial loss and of security, not delay.
Procedural defect in invoking Order 22 Rule 25 instead of Order 42 Rule 6
The wrong provision rendered the application procedurally defective, but the court addressed it on the merits since no prejudice was occasioned
The respondent argued the application was brought under the wrong provision. The court agreed that the applicable provision was Order 42 Rule 6, but applied the principle that a procedural defect which causes no prejudice to the other side should not defeat a determination on the merits. The application was therefore considered substantively and dismissed on the substantive conditions.
Review of the security order
Review of the order to deposit the decretal sum was refused because the applicant had not offered any security
The applicant sought to deposit only Kshs.20,000 of the Kshs.105,000 decretal sum, with the balance after three months, citing loan obligations, and asked the court to compel the respondent to repay his investment in the premises. The court held that such a claim could not substitute for the legal obligation to furnish security for due performance of the decree.
Legal principles established
#- An applicant for stay pending appeal must demonstrate substantial loss by evidence, and offer security for due performance of the decree
- An appeal out of a money decree would rarely be rendered nugatory
Court orders
#- 1.The notice of motion dated 30th July, 2015 and the application dated 29th September, 2015 for review are dismissed
- 2.Costs of the application dated 30th July, 2015 awarded to the respondent
- On appeal from
- Business Premises Rent Tribunal (BPRT)
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction over BPRT decisions; application under Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Gicheru Karangu v Richard Gicheru Irungu [2015] KEELC 48 (KLR)", Case Analysis (2015). Not stated in the ruling (High Court appeal from BPRT). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/48/eng@2015-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.