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ELCDismissedNotice of motion dated 19th December 2018 (arising from originating summons dated 27th November 2014)· [2019] KEELC 1222 (KLR)

Bonny Fashions Limited v Rajesh Shah & another [2019] KEELC 1222 (KLR)

Environment and Land Court
9 October 2019
LKL. Komingoi
1,471 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 refused to pause an eviction because the applicant couldn't show specific loss, provide security, or prove it had a real appeal.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 19th December 2018 brought under Order 42 rule 6 of the Civil Procedure Rules seeking stay of execution of orders made on 15th November 2018, by which the court struck out the defendant/applicant's defence and entered judgment for the plaintiffs/respondents in an originating summons concerning Land Parcel No. 209/138/12, with eviction orders issuing. The applicant, a director of the defendant company, contended it had been a tenant for 20 years at quarterly rent of Kshs.120,000, had no alternative premises, and would suffer substantial loss rendering its intended appeal to the Court of Appeal nugatory; it offered to furnish security. The respondents opposed, arguing no draft memorandum of appeal was annexed, the applicant occupied the premises illegally since 2014, and the estate of Juthalal Virpal Shah continued to incur losses including unpaid mesne profits. The court identified a single issue: whether the application was merited. Restating the settled conditions under Order 42 rule 6(2) - absence of unreasonable delay, substantial loss, and security - the court found the application was made without delay but that the applicant failed to demonstrate specific substantial loss, particularly as the lease had been terminated and the applicant had ceased to be a tenant. The absence of a draft memorandum of appeal meant the court could not be persuaded there was an arguable appeal, and the mandatory security condition was unsatisfied. The application was dismissed with costs to the plaintiffs/respondents.

Key legal issues

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01

Whether the applicant satisfied the conditions for stay of execution pending appeal under Order 42 rule 6(2)

Holding

The application was dismissed: the applicant did not demonstrate substantial loss, did not attach a draft memorandum of appeal, and did not offer security for the due performance of the decree.

Reasoning

The court restated the settled principles for stay: absence of undue delay, substantial loss, and security. While the application was found to be made without unreasonable delay, the applicant failed to demonstrate specific substantial loss, especially as the lease had been terminated and the applicant had ceased to be a tenant. The absence of a draft memorandum of appeal deprived the court of a basis to find an arguable appeal, and the security condition, set in mandatory terms, was not met.

p. 3

Legal principles established

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  • A stay of execution under Order 42 rule 6(2) requires the applicant to demonstrate substantial loss, that the application was brought without unreasonable delay, and to offer security for due performance of the decree
  • A mere assertion of substantial loss is insufficient; the loss must be specifically particularised

Court orders

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  1. 1.The notice of motion dated 19th December 2018 is dismissed with costs to the plaintiffs/respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)

Cases cited (3)

  • Butt vs Rent Restriction Tribunal
    [1982] KLR 417
  • Feisal Amini Far Mohammed t/a Dunvia Forwarders vs Shami Trading Co. Ltd
    MSA HC Civil Appeal No. 65 of 2013 [2014] eKLR
  • Michira t/a Michira & Company Advocates vs East African Standard
    [200] KLR 63
On appeal from
Court of Appeal
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap 21

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, "Bonny Fashions Limited v Rajesh Shah & another [2019] KEELC 1222 (KLR)", Case Analysis (2019). Notice of motion dated 19th December 2018 (arising from originating summons dated 27th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1222/eng@2019-10-09

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