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ELCPartially AllowedNot stated in the judgment· [2019] KEELC 4038 (KLR)

Hassan Abdi Harsi v George Loch Mbuya Ogola [2019] KEELC 4038 (KLR)

High Court of Kenya
19 March 2019
1,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court paused a tribunal order requiring a Kshs. 1.65 million rent deposit, letting a tenant appeal — but only after paying Kshs. 800,000 security.

What this practically means

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Executive summary

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By a Notice of Motion dated 16th October 2018 filed under Order 42 Rule 6 of the Civil Procedure Rules, 2010, the applicant sought stay of execution of an order of the Business Premises Rent Tribunal dated 12th October 2018 pending his appeal. The tribunal's order required the tenant to deposit disputed rent of Kshs. 1,650,000/= within 30 days, in default of which the landlord would levy distress. The applicant, through Kerario Marwa and Company Advocates, argued the sum was colossal and beyond his ability to raise, that the respondent was not his landlord, and that he had been paying rent to court pursuant to an order in Kisii HCCC No. 180 of 1993. The respondent, appearing in person, opposed the application, asserting ownership of plot No. 24 Migori, alleging contempt of court orders for failure to deposit rent, and contending the appeal lacked merit. The court applied the three Order 42 Rule 6 thresholds: substantial loss, no unreasonable delay, and security. It found the Kshs. 1,650,000/= deposit pointed to likely substantial loss in the form of extra, parallel or double rent payment should the appeal succeed, and that the application filed about four days after the order was made without unreasonable delay. On security, the court noted it was arguable whether a sum in excess of an unascertained decretal amount could be ordered. The motion was allowed: stay of execution of the tribunal's order was granted pending the appeal, conditional on the appellant depositing security of Kshs. 800,000/= or equivalent security with a certificate of official search and valuation report within 30 days, with costs of the motion to abide the outcome of the appeal.

Key legal issues

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01

Whether the Kshs. 1,650,000/= deposit ordered by the tribunal constitutes substantial loss

Holding

Yes — the amount is substantial and a further parallel payment of rent would be considerable financial loss if the appeal succeeds

Reasoning

The tribunal ordered the tenant to deposit disputed rent of Kshs. 1,650,000/= within 30 days failing which distress would be levied. The applicant contended he had been paying rent to court pursuant to an earlier order in Kisii HCCC No. 180 of 1993. The court found the substantial nature of the amount and the circumstances pointed to likely substantial loss in terms of extra, parallel or double rent payment if the applicant proved his case on appeal.

p. 2
02

Whether the application was made without unreasonable delay

Holding

Yes — the application was filed about four days after the tribunal's order

Reasoning

The tribunal's order was dated 12th October 2018 and the motion was dated 16th October 2018 and filed on 17th October 2018. The court held the applicant was vigilant in bringing the application without unreasonable delay, and invoked Article 10 national values and equitable principles regarding delay and vigilance in the applicant's favour.

p. 2
03

Whether security exceeding the unascertained decretal amount could be ordered

Holding

The decretal amount must be ascertained during the appeal, but the applicant must still give security as a condition of stay

Reasoning

The court noted it was arguable whether an applicant could be ordered to deposit a sum in excess of the decretal amount which had not been ascertained by the court or by consensus of the parties. It nonetheless directed security of Kshs. 800,000/= or equivalent security with a certificate of official search and valuation report, the decretal amount to be ascertained during determination of the appeal.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must show substantial loss, file without unreasonable delay, and offer security as directed by the court under Order 42 Rule 6
  • A deposit ordered in excess of an ascertained decretal amount may point to substantial loss; the decretal amount must be ascertained by the court or consensus of the parties

Court orders

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  1. 1.Stay of execution of the order of the tribunal dated 12th October 2018 until hearing and determination of this appeal
  2. 2.The appellant to deposit in court security for due performance in the sum of Kshs. 800,000/= or security of an equivalent amount together with the relevant certificate of official search and a valuation report within thirty (30) days
  3. 3.Costs of the motion to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301 Laws of Kenya)Not stated
  • Constitution of Kenya, 2010Article 10

Cases cited (5)

  • Carter and Sons Ltd v Deposit Protection Fund Board and others
    Civil Appeal No. 291 of 1997
  • Equatorial Commercial Bank Ltd and 2 others v Retreat Villas Ltd
    (2006) eKLR
  • Blue Shield Insurance Company Ltd v Mahinda
    (2009) KLR 559
  • Arnold v Westminster Bank
    (1991) AC 93
  • The Owners of Motor Vessel Lilian 'S' v Caltex Kenya Ltd
    (1989) KLR 1
On appeal from
Business Premises Rent Tribunal
Not stated
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal from the Business Premises Rent Tribunal)

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, "Hassan Abdi Harsi v George Loch Mbuya Ogola [2019] KEELC 4038 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4038/eng@2019-03-19

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