Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNakuru Rent Restriction Tribunal Case Number 33 of 2017 (Appeal)· [2018] KEELC 377 (KLR)

Julia Wangare & another v Grace Mukuha & another [2018] KEELC 377 (KLR)

Environment and Land Court
18 December 2018
957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Nakuru refused to pause a rent order because the tenants showed no real harm—they simply had to keep paying rent while appealing.

What this practically means

#

Executive summary

#
By Notice of Motion dated 30th October 2017, the appellants sought a stay of execution of the ruling delivered on 25th September 2017 in Nakuru Rent Restriction Tribunal Case Number 33 of 2017, together with consequential orders, pending the hearing and determination of their appeal. The ruling had dismissed the 1st appellant's application and directed payment of rent, failing which distress for rent could be levied. The application was supported by an affidavit of the 2nd appellant, who deposed that unless stay was granted the appeal would be rendered nugatory. The respondents, through a replying affidavit sworn by the 2nd respondent, opposed the application, deposing that the 1st appellant owed rent of KShs 250,000 and last paid the monthly rent of KShs 25,000 on 21st January 2017; they urged that payment of rent be a condition for any stay. The application was canvassed by written submissions. The court applied Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010 and the decision in Kenya Shell Limited v Benjamin Karuga Kibiru & another. It found the application was filed without unreasonable delay, since the appeal and application followed promptly after the tribunal's ruling. However, on substantial loss, the court held that distress for rent would only follow if the appellants failed to pay rent as ordered, and the 2nd appellant had described himself as a man of means capable of paying any amounts ordered. The appellants therefore failed to establish substantial loss, and the application was dismissed with costs to the respondents.

Key legal issues

#
01

Substantial loss as the cornerstone for granting stay of execution pending appeal

Holding

The appellants failed to establish substantial loss; the tribunal's order required them only to pay rent, and the 2nd appellant described himself as a man of means able to pay any amounts ordered

Reasoning

The tribunal's ruling directed payment of arrears from February 2017 to September 2017 within 30 days and monthly rent in advance, with distress for rent only in default of payment. Since distress would follow only upon the appellants' own failure to pay, refusing stay would not cause substantial loss. The right of appeal is safeguarded by the appellants simply paying rent and arrears pending the appeal.

p. 2
02

Unreasonable delay in filing the stay application

Holding

The application filed on 30th October 2017, shortly after the Memorandum of Appeal filed on 17th October 2017 following the 25th September 2017 ruling, was made without unreasonable delay

Reasoning

The court tracked the chronology: tribunal ruling on 25th September 2017, Memorandum of Appeal on 17th October 2017 in the High Court, later transferred to the ELC but not reassigned an ELC Appeal number, and the present application on 30th October 2017. The application therefore satisfied the delay limb of Order 42 rule 6(2), but this alone could not sustain the application once the substantial loss limb failed.

p. 2

Legal principles established

#
  • A litigant seeking stay pending appeal must satisfy the court that substantial loss will result if stay is not granted, that the application was made without unreasonable delay, and that an appeal has been filed

Court orders

#
  1. 1.Notice of Motion dated 30th October 2017 is dismissed with costs to the respondents

Authorities

#

Legislation

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

Cases cited (1)

  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
On appeal from
Rent Restriction Tribunal
Nakuru Rent Restriction Tribunal Case Number 33 of 2017
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, 2010 (appellate stay jurisdiction)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Julia Wangare & another v Grace Mukuha & another [2018] KEELC 377 (KLR)", Case Analysis (2018). Nakuru Rent Restriction Tribunal Case Number 33 of 2017 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/377/eng@2018-12-18

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