Gichoni Ngangu & another v Esther Mbandi Kagina [2016] KEELC 1121 (KLR)
The bottom line
#The High Court refused to pause a rent tribunal's order because the tenants showed no real loss and had ignored a prior court order on where rent should be paid.
What this practically means
#Executive summary
#Key legal issues
#Whether substantial loss was demonstrated
The applicants failed to show what substantial loss they would suffer if stay was not granted; no averment of loss appeared in their affidavits
The court relied on Kenya Shell Ltd v Kibiru, holding that evidence of substantial loss is essential to a stay application. The supporting and supplementary affidavits of the 2nd applicant made no averment of loss. Further, the Tribunal had already found rent unpaid, and an express court order directed rent be paid to the respondent, which had been violated.
Whether payment of rent to a third party disentitled the applicants to stay
Payment of rent to Christopher Ndaru Kagina violated the order of Ong'udi J. dated 11th October 2012 directing rent be paid to the respondent, disentitling the applicants
Succession Cause orders directed that Esther Mbandi Kagina draw rents from the suit premises from 11th October 2012. Any rent paid to Christopher Ndaru Kagina was in violation of that order. Since a litigant must approach the court with clean hands, that violation disentitled the applicants from obtaining discretionary stay relief.
Whether the application was made without unreasonable delay
The court accepted the application was filed without unreasonable delay
The Tribunal's orders were made on 4th June 2015; the memorandum of appeal was filed on 25th June 2015 and the application on 30th June 2015. The court expressly found this constituted no unreasonable delay, but that alone could not sustain the application absent proof of substantial loss.
Legal principles established
#- Substantial loss is the cornerstone for granting stay of execution pending appeal; without evidence of substantial loss, stay should not be granted
- A party seeking discretionary relief must approach the court with clean hands
Court orders
#- 1.The appellants/applicants' Notice of Motion dated 29th June 2015 is dismissed with costs
- On appeal from
- Business Premises Rent Tribunal, Embu
- Tribunal Case No. 2 of 2015
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal), invoked alongside Sections 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichoni Ngangu & another v Esther Mbandi Kagina [2016] KEELC 1121 (KLR)", Case Analysis (2016). Ruling in appeal from Business Premises Rent Tribunal Case No. 2 of 2015, Embu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1121/eng@2016-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.