Henry Ambeva v Phanice Khanjala [2018] KEELC 604 (KLR)
The bottom line
#A Nakuru tenant facing eviction won a one-year stay of execution, showing courts protect tenants whose appeals would be pointless if they lose their premises.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to stay of execution pending appeal
Stay granted where substantial loss (loss of the substratum of the appeal through eviction) is demonstrated, but the court limited its lifespan to facilitate quick disposal
Applying Order 42 rule 6, the court found that eviction would render the appeal nugatory since the appellant runs a church on the premises and the substratum of the appeal would be gone. Relying on Butt v Rent Restriction Tribunal and Kenya Shell v Kibiru, the court exercised its discretion in favour of a stay but limited it to one year to facilitate quick disposal of the appeal.
Setting aside the tribunal's ex parte ruling at the interlocutory stage
Refused, as it would amount to prematurely determining the appeal
Prayer 3 sought exactly the relief pursued in the memorandum of appeal. The judge reasoned that granting such an order at the interlocutory stage would pre-empt the hearing of the appeal itself, so the appellant must pursue that relief through the appeal.
Legal principles established
#- An applicant for stay pending appeal must show substantial loss, that the application was made without unreasonable delay, and must furnish security
- Where eviction would destroy the substratum of the appeal, that constitutes substantial loss justifying a stay
Court orders
#- 1.Stay of execution of the order made on 26th October 2018 in Nakuru Business Premises Rent Tribunal Case No. 64 of 2018 granted pending the hearing and determination of the appeal
- 2.The stay order shall, unless otherwise ordered, remain in force for a period of not more than one (1) year from the date of the ruling
- 3.Costs of the application awarded to the appellant/applicant
- On appeal from
- Business Premises Rent Tribunal (Nakuru)
- 64/2018
- Jurisdiction invoked
- Order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010, on appeal from the Business Premises Rent Tribunal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jeizan & another v Bayusuf & 3 others[2023] KEELC 21057 (KLR)18 Oct 2023
Cite this brief
#Cite this brief
Caselaw, "Henry Ambeva v Phanice Khanjala [2018] KEELC 604 (KLR)", Case Analysis (2018). Business Premises Rent Tribunal Appeal from Nakuru BPRT Case No. 64/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/604/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.