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ELCDismissedMurang'a HCCA 38/2018 (appeal formerly HCCA 38/2018; exact suit number not printed in the judgment)· [2019] KEELC 2764 (KLR)

Simon Macharia Kairu v Stephen K Waruingi & another [2019] KEELC 2764 (KLR)

High Court of Kenya
24 June 2019
2,159 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant, a tenant, moved the High Court at Murang'a by notice of motion seeking stay of execution of an order of the Chairman of the Business Rent Tribunal dated 6/7/2018 (Tribunal Case No. 22 of 2017), pending hearing of the application and pending an appeal to the High Court (formerly Murang'a HCCA 38/2018). The Applicant argued the Tribunal's decree was erroneously extracted, that ownership of the suit premises is disputed in pending suits in which he is not a party, and that paying rent to the 2nd Respondent would amount to unjust enrichment, rendering the appeal nugatory. He also relied on the fact that he had deposited funds into the Judiciary account and with the 1st Respondent. The 2nd Respondent (landlord) opposed, contending the Applicant must pay rent, that payments made contrary to the Tribunal's orders were not compliance, and that refusal of stay would cause financial loss given the lease expiry. The 1st Respondent did not oppose. The court applied Order 42 Rule 6 of the Civil Procedure Rules and the three conditions for stay: no unreasonable delay, substantial loss, and security for due performance. It found the application filed timeously, but held that no substantial loss was demonstrated: the decree was monetary, the 2nd Respondent was willing to refund, no eviction was threatened, and rent remains an obligation in the tenancy relationship. The Applicant had also failed to comply with the Tribunal's conditional orders to deposit rent and settle arrears, the interim stay having lapsed on default. The application was dismissed with costs to the 2nd Respondent.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

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.

Reasoning

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.

p. 3
02

Whether substantial loss would result if stay is not granted

Holding

No substantial loss shown: the decree is monetary, the 2nd Respondent is willing to refund, and there is no move to evict the Applicant.

Reasoning

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.

p. 3
03

Whether the Applicant provided security for due performance of the decree

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application awarded to the 2nd Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (5)

  • Antony Muli t/a Mutembei Mathoka General Store -Vs- Kilalani Farmers Coop Society Ltd
    (2014) eKLR
  • Focin Motor cycle Co. Ltd Vs Ann Wambui Wangui & Anor
    (2018) EKLR
  • Southern Credit Bank -Vs- Tulip Apartments & 3 others
    (2007) EKLR
  • Machira t/a Machira & Co. Advocates vs. East African Standard (No 2)
    (2002) KLR
  • Kenya Hotel Properties Ltd vs. Willesden Properties Ltd
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

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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, "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.