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ELCDismissedBPRT appeal from Tribunal Case No. 285 of 2015 (Nairobi); Notice of Motion dated 30th March, 2016· [2018] KEELC 3514 (KLR)

John Kimani Kariuki v Kanvaldeep Sehmi [2018] KEELC 3514 (KLR)

High Court of Kenya
12 April 2018
1,723 words in judgment
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The bottom line

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A son who sued over his late mother's shop without letters of administration lost his bid to keep the premises pending appeal.

What this practically means

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Executive summary

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This is a ruling by S. Okong'o, J of the High Court at Nairobi on a Notice of Motion dated 30th March, 2016 filed together with an appeal against a ruling of the Business Premises Rent Tribunal (Chairman Hon. Mbichi Mboroki) in Tribunal Case No. 285 of 2015. The tribunal had struck out the appellant's reference (complaint) and interlocutory application as incompetent because the appellant, suing on behalf of the estate of his late mother Agnes Wangare Kariuki, had not obtained letters of administration. The motion sought a temporary injunction restraining interference with the appellant's occupation of Shop C on L.R. 209/136/109, a stay of execution of the tribunal decree, and directions on deposit of monthly rent pending appeal. The respondent opposed, contending the tenancy was with the deceased, that an oral tenancy terminated on her death, and that the appellant lacked locus standi. The court considered each limb separately. On injunction, it held the appellant had not shown an arguable appeal with good chances of success, clarifying that the tribunal had not found the appellant was not a tenant but had struck out the complaint for want of locus standi. On stay, it applied Order 42 Rule 6(2), holding there was no substantial loss since, save for costs, the tribunal issued no positive order capable of execution. The third limb became unnecessary. The application was dismissed with costs to the respondent on 12th April, 2018.

Key legal issues

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01

Eligibility for interlocutory injunction pending appeal

Holding

Refused; the appellant failed to show an arguable appeal with good chances of success

Reasoning

The court perused the tribunal pleadings and ruling and found the tribunal did not decide the appellant was not a tenant; it struck out the complaint as incompetent for want of locus standi because the appellant sued on behalf of the deceased's estate without any material showing he had been appointed administrator. With no material showing capacity to file the complaint, the appeal was not arguable and the injunction failed.

p. 3
02

Stay of execution pending appeal

Holding

Refused; the conditions in Order 42 Rule 6(2) were not met

Reasoning

The court held the appellant had not shown substantial loss. The tribunal had struck out the complaint and application as incompetent; the only operative effect was an order for costs, which is not a positive order capable of execution in the sense contemplated. The appellant could not demonstrate he would suffer substantial loss by paying the respondent's tribunal costs, so the stay limb necessarily failed.

p. 3
03

Locus standi to sue on behalf of a deceased person's estate

Holding

Proceedings brought on behalf of a deceased person's estate without a grant of letters of administration are incompetent

Reasoning

The tribunal had struck out the reference because the appellant, having brought it on behalf of the estate of Agnes Wangare Kariuki (deceased), had not obtained letters of administration or shown appointment as administrator. The court agreed with this reasoning and found the appeal arising from it lacked merit, making the interlocutory relief sought unsustainable.

p. 3

Legal principles established

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  • To obtain an injunction pending appeal, an applicant must demonstrate an arguable appeal with good chances of success; proceedings struck out for want of locus standi cannot found such an appeal where no material shows capacity to sue
  • An order for stay of execution under Order 42 Rule 6(2) requires substantial loss, application without unreasonable delay, and security; where the decision below contains no positive order capable of execution, save as to costs, no stay lies

Court orders

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  1. 1.The Notice of Motion dated 30th March, 2016 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) ActChapter 301, Laws of Kenya
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
On appeal from
Business Premises Rent Tribunal
BPRT Case No. 285 of 2015
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules (stay of execution pending appeal from the tribunal) and the court's appellate jurisdiction over tribunal decisions

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, "John Kimani Kariuki v Kanvaldeep Sehmi [2018] KEELC 3514 (KLR)", Case Analysis (2018). BPRT appeal from Tribunal Case No. 285 of 2015 (Nairobi); Notice of Motion dated 30th March, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3514/eng@2018-04-12

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