Salim Mbarak t/a Bismilahi Lengut Hotel & 6 others v Hasham Lalji Properties Limited [2018] KEELC 4451 (KLR)
The bottom line
#Kenya's Environment and Land Court gave seven Eldoret tenants more time to appeal a rent hike, but only after each paid three months' rent as security.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the appeal was explained and reasonable
The court found that the absence of notice of the judgment date accounted for the period from 4.11.2016 to 5.12.2016, and the remaining 17 days was within reasonable time
Judgment was entered in the presence of the respondent's advocate but absent the applicants' advocate, with no evidence parties were notified of the judgment date. The delay until 5.12.2016 was thus accounted for. The memorandum of appeal was filed 17 days later, less than the 30 days stipulated, so the appeal was filed within reasonable time after discovery of the judgment, and the right to be heard prevailed.
Whether the applicants demonstrated substantial loss
The court found the applicants demonstrated they would suffer substantial loss and economic ruin if execution was levied
The Tribunal had increased and backdated rent, creating large immediate arrears which the applicants said were punitive and exposed their businesses to distress and economic ruin if execution was levied. The court accepted this as demonstrating substantial loss, though it noted the applicants offered no security and imposed one as a condition of the stay.
Security for the due performance of the decree
The court ordered each applicant to deposit in court or furnish security equivalent to three months' rent, failing which execution to issue
The court noted the applicants were silent on security, an established principle for stay of execution. It therefore granted the stay but conditioned it on each applicant depositing in court an equivalent of three months' rent, or in the alternative furnishing equivalent security, with execution to issue on default.
Legal principles established
#- The right to be heard is sacrosanct, cardinal and constitutionally protected and cannot be wished away
- The principles for grant of stay of execution pending appeal are that the application be made without unreasonable delay, that substantial loss be shown, and that security be given
Court orders
#- 1.Extension of time granted within which to appeal from Eldoret BPRT Case Nos. 82, 83, 84, 85, 86, 87 and 88 of 2016 (judgment delivered 4.11.2016), the appeal to be filed within the next 30 days
- 2.Stay of execution of the decree issued for the said judgment pending the hearing of the appeal
- 3.Each applicant to deposit in court an equivalent of three months' rent, failure of which execution to issue
- 4.In the alternative, each applicant to furnish security equivalent to three months' rent, failure of which execution to issue
- On appeal from
- Business Premises Tribunal
- Eldoret BPRT Case Nos. 82, 83, 84, 85, 86, 87 and 88 of 2016
- Jurisdiction invoked
- Section 15, Cap 301 (Business Premises Rent Act) - appeal to the Environment & Land Court with power to extend the 30-day period
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim Mbarak t/a Bismilahi Lengut Hotel & 6 others v Hasham Lalji Properties Limited [2018] KEELC 4451 (KLR)", Case Analysis (2018). Eldoret BPRT Appeals (from BPRT Case Nos. 82, 83, 84, 85, 86, 87 and 88 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4451/eng@2018-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.