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ELCDismissedELC Appeal (from BPRT Tribunal Case No. 865 of 2017 - Nairobi)· [2019] KEELC 3979 (KLR)

New Bibirioni Investment Limited v Mbame General Suppliers Limited [2019] KEELC 3979 (KLR)

Environment and Land Court
21 March 2019
SOS. Okong'o
1,989 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (S. Okong'o, J) determined the appellant's Notice of Motion dated 16th October, 2018 seeking a stay of the proceedings in Tribunal Case No. 865 of 2017 and of all orders issued therein, pending the hearing of the appellant's application dated 2nd August, 2018 and of the appeal against the tribunal's ruling of 6th July, 2018. The dispute arose after the appellant acquired the suit property, L.R No. 209/2455/1 (Latema Nairobi Plaza, formerly Transcom House), on 1st November, 2017, with tenants in occupation, including the respondent holding a lease granted by the previous owner. The appellant served the respondent with a 21-day notice terminating its tenancy; the respondent, contending it was a controlled tenant under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301), filed a reference at the tribunal with an injunction application, which was granted interim ex parte orders. The tribunal later dismissed the reference and the injunction application for want of jurisdiction in the respondent's absence, but on 6th July, 2018 set aside those orders and allowed the respondent to defend the appellant's application. The appellant's stay application was prompted by contempt proceedings the respondent had lodged at the tribunal against the appellant's directors. The court applied the principles for stay, holding that the appellant had not demonstrated substantial loss since it would have a right of appeal against any fresh decision of the tribunal, and that the contempt proceedings related to orders not the subject of the appeal. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether substantial loss had been demonstrated for a stay of the tribunal's proceedings

Holding

The application for stay failed because the appellant did not demonstrate substantial loss; it retains a right of appeal against any fresh decision of the tribunal

Reasoning

The appeal challenged only the tribunal's ruling of 6th July, 2018, which set aside orders made in the respondent's absence and allowed the appellant's application dated 6th December, 2017 to be heard afresh inter partes. The appellant can appeal any adverse outcome of that fresh hearing, so no substantial loss was shown and other stay conditions need not be considered.

p. 2
02

Whether the contempt proceedings before the tribunal justified the stay

Holding

No, because the contempt proceedings relate to orders of 19th December, 2017 and 1st August, 2018, which are not the subject of this appeal

Reasoning

The tribunal had summoned the appellant's directors to show cause why they should not be punished for contempt. The court held that since the orders underlying the contempt are outside the appeal, prosecuting the contempt causes the appellant no prejudice; it will be able to defend itself and to appeal to this court if aggrieved.

p. 2

Legal principles established

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  • The principles applicable to applications for stay of execution pending appeal apply to a large extent to applications for stay of proceedings, including demonstration of substantial loss under Order 42 Rule 6 of the Civil Procedure Rules
  • Contempt proceedings founded on orders that are not the subject of an appeal cannot be a basis for a stay of proceedings pending that appeal

Court orders

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  1. 1.The appellant's Notice of Motion dated 16th October, 2018 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishment) ActChapter 301 Laws of Kenya
  • Civil Procedure RulesOrder 42 Rule 6
On appeal from
Business Premises Rent Tribunal
Tribunal Case No. 865 of 2017 - Nairobi
Jurisdiction invoked
Appeal against the ruling and orders of the Business Premises Rent Tribunal made on 6th July, 2018

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, "New Bibirioni Investment Limited v Mbame General Suppliers Limited [2019] KEELC 3979 (KLR)", Case Analysis (2019). ELC Appeal (from BPRT Tribunal Case No. 865 of 2017 - Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3979/eng@2019-03-21

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