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ELCAllowedBPRT Appeal arising from BPRT No. 645 of 2013, 626 of 2012 and 778 of 2013 (consolidated)· [2017] KEELC 3100 (KLR)

Kenya College Of Commerce & Hospitality & another v St Paul’s University [2017] KEELC 3100 (KLR)

Environment and Land Court
20 January 2017
MGMARY M. GITUMBI
1,583 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped two tenants' eviction on appeal, but only after ordering them to deposit Kshs. 6 million in rent arrears as security.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 10th November 2015 in which the Appellants/Applicants sought stay of execution of the judgment of the Business Premises Rent Tribunal delivered on 2nd October 2015 in consolidated BPRT No. 645 of 2013, 626 of 2012 and 778 of 2013, pending the hearing and determination of their appeal. The 1st Applicant ran Kenya College of Commerce and Hospitality and the 2nd Applicant ran Café D'Elegance, both tenancies on the 4th and 5th Floor of Church House, L.R. No. 209/3848, Moi Avenue/Tom Mboya Street, Nairobi. The Respondent, a University, had issued Notices to Terminate the Tenancy, which the Tribunal allowed, ordering the Applicants to vacate by 31st December 2015. The Applicants argued that eviction would cause irreparable loss - disruption of students' learning before final exams and loss of the restaurant's goodwill and heavy investments. The Respondent opposed, contending the Applicants were in substantial rent arrears (over Kshs. 6 million and Kshs. 1 million respectively) and had not shown specific loss. Applying Order 42 rule 6 of the Civil Procedure Rules, 2010, and the Machira case, the court found substantial loss established since execution would render the substratum of the appeal nugatory; that there was no unreasonable delay; and conditioned the stay on the deposit of Kshs. 5 million and Kshs. 1 million respectively as security within 30 days. Subject to those conditions, the application was allowed.

Key legal issues

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01

Substantial loss

Holding

The Applicants established substantial loss because eviction would render the substratum of the appeal nugatory.

Reasoning

The 1st Applicant operates a college with students about to sit final exams and the 2nd Applicant runs a restaurant whose goodwill and heavy investments could not be compensated. The court agreed that execution would disrupt both businesses and destroy the very substratum of the appeal, so substantial loss was made out.

p. 3
02

Unreasonable delay

Holding

There was no unreasonable delay; the application filed on 11th November 2015 followed the judgment of 2nd October 2015 within the required time.

Reasoning

The court compared the date of the impugned judgment (2nd October 2015) with the filing date of the application (11th November 2015) and concluded the application was brought within the required time, satisfying the second limb of Order 42 rule 6(2).

p. 3
03

Security for due performance

Holding

Security was imposed as a condition: the 1st Applicant to deposit Kshs. 5 million and the 2nd Applicant Kshs. 1 million in court within 30 days.

Reasoning

The court found that the Applicants had not come to court with clean hands nor done equity to the Respondent, since the unchallenged rent arrears exceeded Kshs. 6 million for the 1st Applicant and Kshs. 1 million for the 2nd. Deposit of these sums was made a condition precedent to the stay.

p. 3

Legal principles established

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  • An applicant for stay of execution who alleges substantial loss must specify the loss and give details or particulars thereof; a mere assertion of substantial loss or that the appeal will be rendered nugatory is insufficient.
  • Where execution of the judgment would destroy the subject matter of the appeal, the appeal would be rendered nugatory and substantial loss is established.

Court orders

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  1. 1.Stay of execution of the Judgment of the Business Premises Rent Tribunal delivered on 2nd October 2015 granted pending the hearing and determination of the appeal
  2. 2.The 1st Applicant to deposit the sum of Kshs. 5 million to the court as security
  3. 3.The 2nd Applicant to deposit the sum of Kshs. 1 million to the court as security
  4. 4.The sums to be deposited in court within 30 days

Authorities

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Legislation

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

Cases cited (1)

  • Machira t/a Machira & Co vs. East African Standard
    (2002) 2 KLR 63
On appeal from
Business Premises Rent Tribunal
BPRT No. 645 of 2013, 626 of 2012 and 778 of 2013 (consolidated)
Jurisdiction invoked
Order 42 rule 6(1) and (6) of the Civil Procedure Rules, 2010 (stay of execution pending appeal from the Tribunal)

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, "Kenya College Of Commerce & Hospitality & another v St Paul’s University [2017] KEELC 3100 (KLR)", Case Analysis (2017). BPRT Appeal arising from BPRT No. 645 of 2013, 626 of 2012 and 778 of 2013 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3100/eng@2017-01-20

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