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ELCPartially AllowedNotice of Motion dated 6th April 2018 (Business Premises Rent Tribunal Case No. 26 B-2016 appeal)· [2018] KEELC 1526 (KLR)

Toncap Investments v Luore Management [2018] KEELC 1526 (KLR)

Environment and Land Court
26 September 2018
GOG.M.A. Ongondo
1,369 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 paused eviction proceedings from a tribunal ruling, but only because the tenant agreed to deposit Kshs. 300,000 as security.

What this practically means

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Executive summary

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The applicant, Tom Ndege, moved the Environment and Land Court at Migori by notice of motion dated 6th April 2018 seeking stay of execution of orders made by the Chairman of the Business Premises Rent Tribunal in Case No. 26 B-2016 on 27th March 2018, together with maintenance of status quo, pending the hearing of his intended appeal. He argued that the tribunal determined the reference in his absence without due service, contrary to Article 50(1) of the Constitution and natural justice, and that without stay he risked forceful eviction from his long-held business premises. The respondent, through Engineer Philip Okundi's replying affidavit, opposed the application, contending that the tribunal matter was duly heard, that no triable issues existed, that no appeal lay in the relevant cause, and that the application was an abuse of process. The court directed written submissions. Applying Order 42 rule 6 of the Civil Procedure Rules, the judge found the application was made without unreasonable delay, that substantial loss was plausible, and that triable issues existed in the memorandum of appeal, although no security had been furnished. Invoking its power under Section 13(7)(a) of the Environment and Land Court Act to issue preservation orders, and following the Moi High School Kabarak and Silverstein decisions, the court allowed the application in terms of prayers (iii) and (iv), conditional upon the applicant depositing security of Kshs. 300,000/= within 14 days and paying costs and adjournment fees ordered on 31st May 2018. Costs of the application were reserved to the cause, with mention fixed for 20/11/2018.

Key legal issues

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01

Whether the applicant satisfied the Order 42 rule 6 conditions for stay of execution

Holding

Yes, partially: the application was made without unreasonable delay and triable issues exist, but security was to be furnished as a condition

Reasoning

The orders under appeal were made on 27th March 2018 and the record of appeal filed on 19th April 2018, showing no unreasonable delay. Substantial loss was asserted through the risk of forceful eviction from the business premises. However, no security had been given, so the court granted stay subject to a deposit of Kshs. 300,000/=. The ex-parte hearing claim was left for trial of the appeal.

p. 2
02

Whether there are triable issues warranting preservation of the subject matter pending appeal

Holding

Yes, triable issues were raised in the memorandum of appeal and the appeal may be rendered nugatory without stay

Reasoning

The respondent argued there were no triable issues and that the applicant participated in the tribunal proceedings, but the court held that the claim of ex-parte determination was a matter for trial of the appeal, the respondent having not yet responded. Relying on the Moi High School Kabarak and Silverstein authorities, the court found interim preservation appropriate in the interest of justice.

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Legal principles established

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  • The three conditions for stay of execution under Order 42 rule 6 are substantial loss, application without unreasonable delay, and security for due performance
  • The court may issue interim preservation orders over the subject matter of an appeal, including maintenance of status quo rather than an injunction
  • Grant of stay of existing orders cannot be a matter of course; it rests upon genuine conditions, grounds, merit and dispatch

Court orders

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  1. 1.The application dated 6th April 2018 allowed in terms of orders (iii) and (iv) sought therein (stay of execution of the orders of the Chairman in BPRT Case No. 26 B-2016 and maintenance of status quo) subject to the security order
  2. 2.The applicant to give security of Kshs. 300,000/= to be deposited with the court within 14 days
  3. 3.The applicant to pay costs to the respondent's counsel and adjournment fee as ordered on 31st May 2018 within 14 days
  4. 4.Costs of the application to be in the cause
  5. 5.Mention for directions on the appeal fixed for 20/11/2018

Authorities

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Legislation

  • Constitution of Kenya 2010Article 50(1)
  • Civil Procedure Rules 2010Order 42 rule 6
  • Civil Procedure Rules 2010Order 51 rule 6
  • Civil Procedure Rules 2010Order 4 rule 6
  • Environment and Land Court Act, 2015 (2011)Section 13(7)(a)
  • Environment and Land Court Practice Directions, 2014Practice direction No. 33(b)

Cases cited (8)

  • Baker -v- Canada (Minister of Citizenship and Immigration)
    2 S.C.R. 817
  • Attorney General -v- Law Society of Kenya and another
    (2013) eKLR
  • James Wangaliwa and another -v- Agnes Naliaka Chesoto
    (2012) eKLR
  • David Morton Silverstein -vs- Atsango Chesoni
    (2002) eKLR
  • Musa Angira Angira -v- ICDC
    (2015) eKLR
  • Board of Governors Moi High School Kabarak and another -v- Malcolm Bell
    Supreme Court of Kenya applications Nos. 12 and 13 (2012)
  • R v- Kasaman t/a Kasamani & Co. Advocates
    (2005) 2 KLR 297 at 300
  • Malindi Law Society of Kenya -v- The Law Society of Kenya Nairobi Branch & 5 others
    Civil application No. 20 of 2017
On appeal from
Business Premises Rent Tribunal
26 B-2016
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, 2010; Section 13(7)(a) of the Environment and Land Court Act, 2015

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, "Toncap Investments v Luore Management [2018] KEELC 1526 (KLR)", Case Analysis (2018). Notice of Motion dated 6th April 2018 (Business Premises Rent Tribunal Case No. 26 B-2016 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1526/eng@2018-09-26

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