Simon Macharia Kairu v Stephen K Waruingi & another [2019] KEELC 2764 (KLR)
The bottom line
#A tenant's bid to pause a rent tribunal order failed because he showed no real loss and ignored orders to pay rent arrears.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
The application was filed timeously; the Tribunal's orders issued on 6/7/2018 and the application was filed on 22/8/2018, so no delay.
The court compared the date of the Tribunal's orders (6/7/18) with the filing date (22/8/18) and found the application filed timeously, satisfying the first condition. However, the 2nd Respondent had argued inordinate delay from the date of distress levied on 14/8/2018; the court did not treat that as fatal since the application itself was prompt relative to the orders.
Whether substantial loss would result if stay is not granted
No substantial loss shown: the decree is monetary, the 2nd Respondent is willing to refund, and there is no move to evict the Applicant.
The Applicant, a tenant, claimed he was being forced to pay rent to the wrong owner and that payment would unjustly enrich the 2nd Respondent. The court held that a money decree does not render an appeal nugatory where the recipient can refund, that rent payment remains an obligation in the tenancy relationship, and that no eviction was threatened, so no tangible loss was proved.
Whether the Applicant provided security for due performance of the decree
The Applicant failed to comply with the Tribunal's conditional orders to settle arrears and deposit rent, and the interim stay had lapsed upon default.
The court found that the interim stay was conditional on depositing arrears and rent at the Tribunal; instead, the Applicant deposited funds with the Judiciary account and the 1st Respondent, which was not compliance. The conditional orders lapsed on default and were never extended or revived, disqualifying the Applicant from equitable relief.
Legal principles established
#- For stay of execution under Order 42 Rule 6, the applicant must show the application was brought without delay, substantial loss, and security for due performance of the decree
- A mere assertion of substantial loss is insufficient; the applicant must prove specific details and particulars of pecuniary or tangible loss
- For a money decree, the appeal is not rendered nugatory where the decree-holder is able to refund the decretal amount if the appeal succeeds
Court orders
#- 1.The notice of motion dated 28/8/2012 seeking stay of execution of the order of the Business Rent Tribunal dated 6/7/2018 is dismissed
- 2.Costs of the application awarded to the 2nd Respondent
- On appeal from
- Business Rent Tribunal (Murang'a)
- Business Rent Tribunal Case No. 22 of 2017 - Murang'a
- Jurisdiction invoked
- Appellate jurisdiction over a subordinate tribunal; Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal to HCCA)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Macharia Kairu v Stephen K Waruingi & another [2019] KEELC 2764 (KLR)", Case Analysis (2019). Murang'a HCCA 38/2018 (appeal formerly HCCA 38/2018; exact suit number not printed in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2764/eng@2019-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.