Hassan Abdi Harsi v George Loch Mbuya Ogola [2019] KEELC 4038 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Kshs. 1,650,000/= deposit ordered by the tribunal constitutes substantial loss
Yes — the amount is substantial and a further parallel payment of rent would be considerable financial loss if the appeal succeeds
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.
Whether the application was made without unreasonable delay
Yes — the application was filed about four days after the tribunal's order
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.
Whether security exceeding the unascertained decretal amount could be ordered
The decretal amount must be ascertained during the appeal, but the applicant must still give security as a condition of stay
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.
Legal principles established
#- 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
#- 1.Stay of execution of the order of the tribunal dated 12th October 2018 until hearing and determination of this appeal
- 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.Costs of the motion to abide the outcome of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.