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ELCDismissedEldoret ELC Appeal No. 29 of 2019· [2019] KEELC 419 (KLR)

Cindy Cynthia Orwa t/a Cytle Cindy v Sugarland Estate’s Limited [2019] KEELC 419 (KLR)

Environment and Land Court
20 November 2019
3,895 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret dismissed a tenant's stay application because she disclosed key facts incompletely and appealed the wrong tribunal order.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (Odeny J) dealt with an application dated 28th August 2019 by the Appellant/Applicant seeking stay of execution of the ruling and decree in Eldoret Business Premises and Rent Tribunal Case No. 73 of 2018 delivered on 26th July 2019, pending the hearing of Eldoret ELC Appeal No. 29 of 2019. Ex parte stay orders had been granted during the August vacation. The Respondent applied to set aside those orders, contending they were obtained irregularly without disclosure of material facts, since no appeal had been lodged against the Tribunal's 12th April 2019 judgment which terminated the Appellant's tenancy and dismissed her reference. The 26th July 2019 ruling arose from consolidated applications for interpretation and review; it reduced the compensation award from Kshs. 400,000 to Kshs. 257,800 (relocation facilitation, deposit refund and unregistered lease refund) and directed the tenant to remove her structures and vacate. The Respondent issued a banker's cheque for Kshs. 257,800, which the Appellant accepted. The court held that the ex parte orders were obtained through material non-disclosure and vacated them, applying the principles in Bahadurali Ebrahim Shamji v Al Noor Jamal. On stay, the court found the conditions under Order 42 Rule 6 unmet: no substantial loss was established, and, critically, no appeal had been filed against the 12th April 2019 judgment terminating the tenancy, so stay of that judgment could not issue. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Material non-disclosure in ex parte applications

Holding

The ex parte stay orders were obtained by material non-disclosure and were vacated.

Reasoning

The court held that an applicant must disclose all material facts when seeking ex parte relief, citing the principles in Bahadurali Ebrahim Shamji v Al Noor Jamal. Where the inter partes hearing reveals non-disclosure, the offending party cannot benefit from the court's equitable discretion. The court exercised its wide but judicious discretion, as recognised in GOTV Kenya v Royal Media Services, to discharge the orders.

p. 6
02

Whether stay can issue where no appeal lies against the order sought to be stayed

Holding

Stay of execution cannot be granted where the appeal is not directed against the order sought to be stayed; the appellant's appeal is against the 26th July 2019 ruling on quantum, not the 12th April 2019 judgment terminating the tenancy.

Reasoning

Relying on Raymond M Omboga v Austine Pyan Maranga and Wangui Kathryn Kimani, the court held that stay pending appeal is only available against the order being appealed. The appellant's appeal challenges the review ruling on compensation quantum, yet the stay sought relates to the judgment extinguishing her tenancy, against which no appeal was filed. Having accepted the cheque for Kshs. 257,800, she acknowledged her tenancy was extinguished.

p. 6
03

Conditions for stay of execution under Order 42 Rule 6

Holding

Substantial loss, the cornerstone for granting stay, was not established.

Reasoning

Applying Kenya Shell v Benjamin Karuga Kibiru and Macharia v East African Standard, the court found the appellant had not specified or demonstrated substantial loss likely to ensue if stay was refused. The appeal concerned only quantum of compensation, not her tenancy, and she could not simultaneously retain the benefits of the ruling she accepted and resist vacating the premises.

p. 6

Legal principles established

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  • Stay of execution pending appeal can only be granted against the order being appealed against
  • A party who obtains ex parte orders without full and fair disclosure of material facts cannot retain the advantage of those orders

Court orders

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  1. 1.The ex parte orders issued on 29th August 2019 are vacated for material non-disclosure
  2. 2.The application dated 28th August 2019 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder XLI rule 4 (as referenced in quoted authority)
  • Cap 301 Laws of KenyaSection 15
  • Constitution of Kenya

Cases cited (10)

  • Macharia t/a Macharia & Company v East African Standard
    2 KLR
  • Ajale Enterprises Limited v Simon Gikonyo Ndirangu
    (2017) eKLR
  • Toncap Investments v Wore Management
    (2018) eKLR
  • Richard Muthusi v Patrick Gituma Ngomo & Another
    (2017) eKLR
  • Raymond M Omboga v Austine Pyan Maranga
    Kisii HCCA No. 15 of 2010
  • Wangui Kathryn Kimani v Disciplinary Tribunal of Law Society of Kenya & another
    [2017] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Signature Tours & Travel Limited v National Bank of Kenya Limited
    (2017) eKLR
  • Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others
    Civil Appeal No. 210 of 1997
  • GOTV Kenya Limited v Royal Media Services Limited & 2 Others
    [2015] eKLR
On appeal from
Business Premises and Rent Tribunal
Eldoret BPRT Case No. 73 of 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Section 15 Cap 301 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cindy Cynthia Orwa t/a Cytle Cindy v Sugarland Estate’s Limited [2019] KEELC 419 (KLR)", Case Analysis (2019). Eldoret ELC Appeal No. 29 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/419/eng@2019-11-20

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