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ELCAllowedBPRT Appeal arising from BPRT Case No. 720 of 2015; Notice of Motion dated 20th June 2016· [2017] KEELC 2403 (KLR)

National Oil Corporation of Kenya v Real Energy Limited [2017] KEELC 2403 (KLR)

Environment and Land Court (High Court) at Nairobi
12 June 2017
EOE. Obaga
1,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court paused a rent tribunal case, holding that a business agreement that had expired does not create a landlord-tenant relationship.

What this practically means

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Executive summary

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The applicant, registered owner of LR No. 209/6776 on Ngong Road, Nairobi, had entered a two-year Dealer Licence Agreement with the respondent dated 1st April 2014 for the operation of a service station. In 2015 the respondent filed BPRT Case No. 720 of 2015. The applicant's preliminary objection contesting the Tribunal's jurisdiction was overruled by the Tribunal chairman, and the applicant appealed to the High Court. It then moved by notice of motion dated 20th June 2016 for a stay of the Tribunal proceedings pending the appeal, obtaining ex-parte interim orders which were extended. The applicant argued the dealership agreement had lapsed by effluxion of time, that the respondent's continued occupation was causing losses (non-sourcing of products, stocking adulterated fuel, non-payment of monies) and that continuing Tribunal proceedings would render the appeal nugatory. The respondent countered that complaints about leakages had transformed the relationship from dealership into landlord and tenant, giving the BPRT jurisdiction. Ringera J's principles in Global Tours & Travels Limited, as approved in Gichuki Macharia v Kiai Mbaki, were applied: stay of proceedings is a judicial discretion exercised in the interest of justice, weighing expeditious disposal, prima facie merits, judicial time and expedition. Finding an arguable appeal with a high likelihood of success, that the lapsed agreement and the respondent's benefit under the Tribunal's injunctive orders would cause substantial loss, and that the application was expeditious, the court allowed the application in terms of prayers 3, 4 and 5. Costs were not addressed.

Key legal issues

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01

Stay of proceedings pending appeal

Holding

The applicant established an arguable appeal with a high likelihood of success, and that the appeal would be rendered nugatory and substantial loss suffered if the Tribunal proceedings continued; the application, brought expeditiously, was allowed in terms of prayers 3, 4 and 5.

Reasoning

The court applied the Global Tours & Travels principles as approved in Gichuki Macharia v Kiai Mbaki. The applicant's challenge to the Tribunal's jurisdiction rested on the absence of a landlord-tenant relationship, and the dealership agreement contained an arbitration clause. The agreement had lapsed by effluxion of time, yet the respondent continued benefiting under ex-parte injunctive orders from the Tribunal, causing the applicant substantial loss. The application was expeditious and expeditious disposal favoured a stay.

p. 2

Legal principles established

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  • Whether to grant a stay of proceedings pending appeal is a matter of judicial discretion exercised in the interest of justice, weighing the need for expeditious disposal, the prima facie merits of the intended appeal, optimum use of judicial time and whether the application was brought expeditiously.
  • An arguable appeal need not be one that will ultimately succeed; it is enough that it is arguable.

Court orders

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  1. 1.Stay of proceedings before the Business Premises Rent Tribunal in BPRT No. 720 of 2015 pending the hearing and determination of the appeal, in terms of prayers 3, 4 and 5 of the notice of motion dated 20th June 2016

Authorities

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Cases cited (2)

  • Global Tours & Travels Limited
    Nairobi High Court Winding Up Cause No. 43 of 2000
  • Gichuki Macharia & another –Vs- Kiai Mbaki & 2 others
    Winding Up Cause No. 1 of 2000
On appeal from
Business Premises Rent Tribunal (BPRT)
BPRT No. 720 of 2015
Jurisdiction invoked
Appellate jurisdiction over BPRT rulings (notice of motion for stay of proceedings pending appeal)

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, "National Oil Corporation of Kenya v Real Energy Limited [2017] KEELC 2403 (KLR)", Case Analysis (2017). BPRT Appeal arising from BPRT Case No. 720 of 2015; Notice of Motion dated 20th June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2403/eng@2017-06-12

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