Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedBusiness Premises Rent Tribunal Meru (BPRT) Case No. 84 of 2014 (appeal therein); notice of motion dated 2nd March, 2016· [2016] KEELC 424 (KLR)

Nicholas Kigo Wambugu v Miriam Nyawira Mwaniki [2016] KEELC 424 (KLR)

Environment and Land Court of Kenya
5 October 2016
1,896 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause a tribunal's eviction order, confirming you cannot appeal a settlement you agreed to—only ask the same body to set it aside.

What this practically means

#

Executive summary

#
The applicant, Nicholas Kigo Wambugu, moved the court by notice of motion dated 2nd March 2016 seeking stay of execution of orders issued in Business Premises Rent Tribunal Meru Case No. 84 of 2014 pending the hearing and determination of his appeal, and an order directing the BPRT to forward the original tribunal file to the court. The respondent, Miriam Nyawira Mwaniki, opposed the application, contending that the orders sought to be stayed were consent orders recorded on 13th May 2015, that there was inordinate delay, that no lease existed between the parties, and that the application and appeal were vexatious abuses of process. Counsel for the respondent further argued the application was fatally defective for citing the wrong provisions and that an appeal was not the proper forum for challenging consent orders. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and the authorities on stay of execution, the court found that the applicant had not demonstrated substantial loss nor offered security for due performance of the decree, and had not controverted the respondent's averment that he had alternative premises in Nyeri Town. Relying on Section 67(2) of the Civil Procedure Act and Uasin Gishu Weekly Advertiser Ltd v Abdul Aziz Kanji, the court held that no appeal lies from a consent decree and that the proper remedy is review or setting aside before the court which made the orders. The stay was therefore refused; however, to give effect to the applicant's right to agitate his appeal, the application was allowed in terms of prayer 2 (forwarding of the original file). The respondent was awarded the costs of the application.

Key legal issues

#
01

Conditions for grant of stay of execution pending appeal

Holding

The applicant failed to demonstrate substantial loss and did not furnish security, so the stay could not be granted

Reasoning

The court relied on Order 42 Rule 6(2) and a line of authorities holding that substantial loss is the cornerstone of stay applications. The applicant did not controvert the respondent's averment that he has another place within Nyeri Town where he can relocate, and made no offer of security for due performance of the decree. Absent these, the discretion could not be exercised in his favour.

p. 3
02

Whether a consent order may be stayed or challenged on appeal

Holding

Consent orders are not appealable; the proper remedy is an application for review or setting aside before the court that made the orders

Reasoning

Relying on Section 67(2) of the Civil Procedure Act and Uasin Gishu Weekly Advertiser Ltd v Abdul Aziz Kanji, the court held that a consent judgment is not appellable and can only be set aside on grounds which would necessitate setting aside a contract, such as fraud or collusion, or reviewed before the court which made the orders. The stay application aimed at the consent orders was therefore misplaced.

p. 4
03

Whether a defect in citing wrong provisions of the law is fatal

Holding

Such a defect is curable under Article 159 of the Constitution

Reasoning

This was counsel's submission for the applicant in response to the respondent's contention that the application was fatally defective for citing the wrong provisions. The court did not expressly rule on this point, instead disposing of the application on substantial loss and consent-order grounds.

p. 2

Legal principles established

#
  • No order for stay of execution shall be made unless substantial loss, absence of unreasonable delay and security are demonstrated
  • A consent decree is not appealable and can only be set aside or reviewed by the court which made it on grounds such as fraud, collusion or other grounds for setting aside a contract
  • Substantial loss is the epicentre of an application for stay of execution pending appeal

Court orders

#
  1. 1.The application is dismissed insofar as it seeks stay of execution of the consent orders issued in Meru BPRT Case No. 84 of 2014
  2. 2.The application is allowed in terms of prayer 2, directing the BPRT to forward the original file in respect of Meru BPRT Case No. 84 of 2014 to the court
  3. 3.The respondent is awarded the costs of the application

Authorities

#

Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure ActSection 67(2)

Cases cited (6)

  • Sammy Some Kosgei v. Grace Jelel Boit
    (2013) eKLR
  • Daniel Kihara Murage v. Jacinta Karuana Nyangi & Another
    (2015) eKLR
  • Everlyn Jebitok Keter v. Henry Kiplagat Muge & 2 Others
    (2011) eKLR
  • Robert Ngaruiya Chutha vs. Joseph Chege Ndungu
    (2014) eKLR
  • Charles Wahome Gethi v. Angela Wairimu Gethi
    Civil Application No. 302 of 2007 (2008) eKLR
  • Uasin Gishu Weekly Advertiser Ltd v. Abdul Aziz Kanji & 2 others
    (1992) eKLR
On appeal from
Business Premises Rent Tribunal, Meru
BPRT Case No. 84 of 2014
Jurisdiction invoked
Appeal from the Business Premises Rent Tribunal; application brought under Order 42 Rule 6(2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nicholas Kigo Wambugu v Miriam Nyawira Mwaniki [2016] KEELC 424 (KLR)", Case Analysis (2016). Business Premises Rent Tribunal Meru (BPRT) Case No. 84 of 2014 (appeal therein); notice of motion dated 2nd March, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/424/eng@2016-10-05

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