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ELCAllowednot stated in the judgment (appeal against Business Premises Rent Tribunal Case No. 220 of 2013)· [2017] KEELC 1906 (KLR)

Ajale Enterprises Limited v Simon Gikonyo Ndirangu [2017] KEELC 1906 (KLR)

High Court of Kenya (not expressly named in the judgment)
15 September 2017
MGMARY M. GITUMBI
1,093 words in judgment
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The bottom line

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A Kenyan business won a stay of execution because it specifically showed its business, goodwill and nine jobs would be lost.

What this practically means

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Executive summary

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This judgment deals with two interlocutory applications by the Appellant/Applicant, being Notices of Motion dated 2nd October 2015 and 15th December 2015, seeking stay of execution of the judgment and decree of the Chairman of the Business Premises Rent Tribunal, Hon. Mbichi Mboroki, delivered on 10th July 2015 in BPRT Case No. 220 of 2013, pending the hearing and determination of an appeal against that decision. The appeal arose from a Reference opposing a Notice of Termination dated 21st January 2013 signed by the Respondent's advocate, whose authority was disputed. The Respondent opposed through a Replying Affidavit sworn by Carol Mwihaki Gikonyo, but the court disregarded it because the deponent wrongly described herself as the Respondent, when the Respondent is Simon Gikonyo Ndirangu, and she disclosed no relationship with him nor filed authority to act; the applications were therefore taken as unopposed. The governing provision was Order 42 rules 6(1), (2) and (6) of the Civil Procedure Rules, 2010. Applying Machira t/a Machira & Co vs. East African Standard No.2 (2002) 2 KLR 63, the court held that the applicant had particularised the loss of its business, goodwill, customers and the jobs of 9 employees, amounting to substantial loss; that the application was made without unreasonable delay (judgment delivered 10th July 2015, appeal filed 11th August 2015, application filed 2nd October 2015); and, as details of security were not before it, no security was required. Both applications were allowed, with costs in the cause.

Key legal issues

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01

Whether the Appellant/Applicant stands to suffer substantial loss if stay is not granted

Holding

Loss of the business, its goodwill and 9 employees amounts to substantial loss

Reasoning

The court applied the Machira decision requiring particulars of the loss rather than bare assertions. The applicant specified closure of the business, loss of local customers and goodwill, and the risk of 9 employees losing jobs, which the court found sufficient to satisfy the substantial-loss threshold.

p. 2
02

Whether the application was made without unreasonable delay

Holding

It was made without unreasonable delay

Reasoning

Judgment was delivered on 10th July 2015; the appeal was filed on 11th August 2015 and the first application on 2nd October 2015, roughly 2½ months later. The court found this delay not unreasonable.

p. 2
03

Whether security for the due performance of the decree should be given

Holding

No security required at this stage as details were not before the court

Reasoning

Order 42 rule 6(2)(b) requires security, but the court found the details were not before it at that juncture and therefore declined to require any security from the applicant.

p. 2

Legal principles established

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  • An applicant relying on substantial loss must specify the kind of loss and give particulars, and the court must be satisfied such loss will really ensue
  • Loss of a business, its goodwill and employees' jobs can amount to substantial loss for purposes of stay

Court orders

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  1. 1.The two applications (Notice of Motion dated 2nd October 2015 and Notice of Motion dated 15th December 2015) are allowed
  2. 2.Stay of execution of the judgment and decree of the Chairman of the Business Premises Rent Tribunal delivered on 10th July 2015 in BPRT Case No. 220 of 2013 pending the hearing and determination of the appeal
  3. 3.No security is required of the Appellant/Applicant for the due performance of the decree
  4. 4.Costs shall be in the cause

Authorities

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Legislation

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

Cases cited (1)

  • Machira t/a Machira & Co vs. East African Standard No.2
    (2002) 2 KLR 63
On appeal from
Business Premises Rent Tribunal
BPRT Case No. 220 of 2013
Jurisdiction invoked
Appellate jurisdiction over the Business Premises Rent Tribunal; applications under Order 42 rules 6(1), (2) and (6) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ajale Enterprises Limited v Simon Gikonyo Ndirangu [2017] KEELC 1906 (KLR)", Case Analysis (2017). not stated in the judgment (appeal against Business Premises Rent Tribunal Case No. 220 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1906/eng@2017-09-15

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