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ELCAllowedNotice of Motion filed 11th September 2015, arising from Appeal against the Ruling in CMCC No. 1710 of 2015· [2017] KEELC 3155 (KLR)

Ketan Mansukhlal Shah & 2 others v Gulf Manpower Recruiting Agency Limited [2017] KEELC 3155 (KLR)

High Court of Kenya
17 March 2017
MGMary M. Gitumbi
1,183 words in judgment
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The bottom line

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Kenya's High Court halted contempt proceedings that could send landlords to civil jail, ruling that facing imprisonment counts as substantial loss justifying a stay pending appeal.

What this practically means

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Executive summary

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This was an undated Notice of Motion filed on 11th September 2015 in which the Appellants/Applicants sought an order of stay of execution of a Ruling delivered on 9th September 2015 by Hon. M. Chesang in CMCC No. 1710 of 2015 pending the hearing and determination of their Appeal. The Applicants, landlords, contended that the Respondent had obtained an injunction against a non-existent company, Watersys Properties Limited, through misrepresentation of service on their caretaker, that their application to set aside the injunction remained undetermined, and that committal orders to civil jail issued on 9th September 2015 threatened their freedom, notwithstanding the Respondent's alleged rent arrears under a consent letter of 10th March 2015. The Respondent, through the Replying Affidavit of its director Jeremiah M. Kisangau, argued that the misdescription of the landlord did not invalidate the injunction, that it did not lapse upon amendment of the plaint, and that the Applicants had disobeyed the injunction by instructing auctioneers to levy distress for rent on 18th May 2015. The court framed the single issue of whether to grant stay, applying Order 42 rule 6 of the Civil Procedure Rules, 2010. Relying on Machira t/a Machira & Co vs. East African Standard No.2, the court held that the prospect of committal to civil jail constituted substantial loss; the two-day delay in filing was not unreasonable; and, as the Respondent was the tenant allegedly in arrears, no security was required. The application was allowed with costs in the cause.

Key legal issues

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01

Substantial loss

Holding

The condition of substantial loss was satisfied because the Applicants faced committal to civil jail under the Ruling.

Reasoning

The court applied the test in Machira t/a Machira & Co vs. East African Standard No.2 that substantial loss must be specified with particulars and the conscience of the court satisfied that the loss will really ensue. The Applicants demonstrated that if the Ruling were not stayed they stood to be committed to civil jail, which the court held to amount to substantial loss.

p. 3
02

Unreasonable delay

Holding

The application was filed without unreasonable delay, having been lodged two days after the Ruling.

Reasoning

Order 42 rule 6(2)(a) requires the application to have been made without unreasonable delay. The Ruling was delivered on 9th September 2015 and the application was filed on 11th September 2015, a two-day interval which the court found satisfied the requirement.

p. 3
03

Security

Holding

No security was required from the Applicants because the Respondent is the tenant allegedly in rent arrears in the Applicants' premises, the suit premises.

Reasoning

Order 42 rule 6(2)(b) ordinarily requires security for due performance of the decree. However, the court noted the particular posture of the case: the Respondent is the tenant and is alleged to be in arrears of rent in the Applicants' premises which are the suit premises, and so it was unnecessary to require the Applicants to furnish security.

p. 3

Legal principles established

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  • An applicant seeking stay on the ground of substantial loss must specify the loss with particulars, and the court must be satisfied that such loss will really ensue
  • An impending committal to civil jail constitutes substantial loss for purposes of Order 42 rule 6(2)

Court orders

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  1. 1.An order of stay of execution of the Ruling delivered on 9th September 2015 by Hon. M. Chesang in CMCC No. 1710 of 2015 pending the hearing and determination of the Appeal
  2. 2.Costs in the cause

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 No.2
    (2002) 2 KLR 63
On appeal from
Chief Magistrate's Court (Nairobi)
CMCC No. 1710 of 2015
Jurisdiction invoked
Order 42 rule 6(1) 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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Cite this brief

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Cite this brief

Caselaw, "Ketan Mansukhlal Shah & 2 others v Gulf Manpower Recruiting Agency Limited [2017] KEELC 3155 (KLR)", Case Analysis (2017). Notice of Motion filed 11th September 2015, arising from Appeal against the Ruling in CMCC No. 1710 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3155/eng@2017-03-17

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