John Kimani Kariuki v Kanvaldeep Sehmi [2018] KEELC 3514 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Eligibility for interlocutory injunction pending appeal
Refused; the appellant failed to show an arguable appeal with good chances of success
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.
Stay of execution pending appeal
Refused; the conditions in Order 42 Rule 6(2) were not met
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.
Locus standi to sue on behalf of a deceased person's estate
Proceedings brought on behalf of a deceased person's estate without a grant of letters of administration are incompetent
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 30th March, 2016 is dismissed
- 2.Costs of the application to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.