Eerick Mwirigi Mbabu v Peter Ndua Munjogu & another [2018] KEELC 1047 (KLR)
The bottom line
#The High Court refused to pause the landlord-tenant case because the tenant no longer occupied the property, delayed prosecuting his appeal, and offered no security.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
No substantial loss would be occasioned since the Appellant is no longer occupying the suit premises
The bone of contention was the Tenancy Agreement; the Respondent alleged rent arrears of about Kshs.2,000,000 and unpaid electricity bills, which the Appellant never substantiated with evidence of payment. The Court found the Appellant was no longer in occupation, so refusal of stay would cause no substantial loss.
Reasonable delay and prosecution of the appeal
Although the application was filed within a reasonable time, there was unreasonable delay in prosecuting the appeal, with no record of appeal filed since July 2016
Order 42 Rule 35(2) provides for dismissal of appeals not set down within one year. The Court noted the matter had been consumed by interlocutory applications since 2016 and the record of appeal had not been filed, hence the appeal was not being diligently prosecuted.
Security for due performance
The Appellant failed to demonstrate good faith by paying rent arrears or electricity bills or offering any security
The Appellant was accused of breaching payment of rent and electricity charges but attached no evidence of payment and made no offer on how arrears would be paid, failing the security condition in Order 42 Rule 6(2).
Legal principles established
#- An applicant for stay of execution pending appeal must satisfy the twin conditions of substantial loss and no unreasonable delay, and must furnish security; failure to prove one dislodges the other
- An applicant must also demonstrate that the intended appeal will be rendered nugatory if stay is not granted
Court orders
#- 1.The Notice of Motion dated 13th July 2016 is dismissed entirely with costs to the Respondents
- 2.The interim orders in place are discharged and/or vacated
- 3.The Appellant to file his record of Appeal within 21 days from the date of the Ruling, failing which the intended appeal shall stand dismissed as provided by Order 42 Rule 35(2) of the Civil Procedure Rules
- On appeal from
- Chief Magistrate's Court at Nairobi, Milimani Commercial Court
- CMCC No.6610 of 2012
- Jurisdiction invoked
- Order 42 Rule 6(1) and 6(2) of the Civil Procedure Rules (stay of execution/proceedings pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eerick Mwirigi Mbabu v Peter Ndua Munjogu & another [2018] KEELC 1047 (KLR)", Case Analysis (2018). Notice of Motion dated 13th July 2016 (arising from Civil Suit No.6610 of 2012, Milimani Commercial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1047/eng@2018-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.