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ELCAllowedNot stated in the excerpt (arising from Nairobi Rent Restriction Case No. 193 of 2011)· [2019] KEELC 4830 (KLR)

Tony Mugambi & 8 others v Daniel Macharia & another [2019] KEELC 4830 (KLR)

High Court of Kenya
31 January 2019
1,367 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court froze a rent increase and evictions pending appeal, but tenants must pay extra monthly security or lose the protection automatically.

What this practically means

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Executive summary

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The appellants were monthly tenants of the respondents in 2-bedroomed flats on L.R No. 209/12125, Shauri Moyo, Nairobi, paying Kshs.2,000/- per month under tenancies subject to the Rent Restriction Act, Cap 296. In June 2011 they sued the respondents at the Rent Restriction Tribunal seeking damages for unlawful rent increase and an injunction against eviction. The Tribunal directed assessment of the Standard Rent; three valuers returned figures of Kshs.15,000/-, Kshs.2,000/- and Kshs.12,000/-. On 5th April 2016 the Tribunal held that the suit property did not fall within the ambit of the Rent Restriction Act and that it lacked jurisdiction, advising the parties to seek redress elsewhere. The appellants appealed, contending the Tribunal erred in adopting Kshs.15,000/- instead of their valuer's figure, and filed a Notice of Motion seeking to restrain the respondents from increasing rent (from Kshs.2,000/- to Kshs.15,000/-) or evicting them pending appeal. The respondents opposed, saying the old rent was uneconomical. S. Okong'o J treated the misworded application as one for stay of execution under Order 42 Rule 6, found substantial loss, absence of unreasonable delay and willingness to furnish security, and allowed the application. The Tribunal's decision was stayed and the respondents restrained from increasing rent or evicting the appellants pending the appeal, on condition that each appellant deposits Kshs.5,000/- monthly into a joint interest-earning account as security, default discharging the stay automatically. Costs were in the cause.

Key legal issues

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01

Whether the misworded application could be treated as one for stay of execution

Holding

Yes. Although the appellants sought injunction-type relief rather than a stay, the court treated the application as one for stay under Order 42 Rule 6.

Reasoning

The court observed that the prayers were not happily worded and that what the appellants really wanted was an order staying execution of the Tribunal's decision of 5th April 2016 which is the subject of the appeal. Having been brought under Order 42 Rule 6, the court treated it as a stay application and assessed it against the settled conditions.

p. 2
02

Whether the conditions for stay were satisfied

Holding

Yes. Substantial loss would follow since the respondents had increased rent from Kshs.2,000/- to Kshs.15,000/- and the appellants risked losing their tenancies; the application was brought without unreasonable delay; and the appellants were willing to furnish security.

Reasoning

The Tribunal had found the appellants were not controlled tenants, freeing the respondents to raise rent to any level. The appellants faced eviction and their appeal would be rendered nugatory without a stay. Delay was not unreasonable and the appellants expressed willingness to furnish security as directed.

p. 2

Legal principles established

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  • An application not in terms of Order 42 Rule 6 but seeking to preserve the position pending appeal may be treated as an application for stay of execution.
  • The three settled conditions for stay of execution under Order 42 Rule 6 are substantial loss, absence of unreasonable delay and furnishing of security.

Court orders

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  1. 1.The ruling and orders made by the Rent Restriction Tribunal on 5th April, 2016 in Nairobi Rent Restriction Case No. 193 of 2011 are stayed and the respondents are restrained from increasing rent for the premises known as Flat Numbers F1 to F9 on L.R. No. 209/12125 or evicting the appellants from the said premises pending the hearing and determination of this appeal.
  2. 2.Each of the appellants shall deposit in a joint interest earning bank account in the names of the advocates on record for the parties a sum of Kenya Shillings Five Thousand (Kshs.5,000/=) per month as security with effect from 10th February, 2019 and on the 10th day of each subsequent month until the determination of the appeal or further orders by the court, in addition to the normal monthly rent.
  3. 3.In the event that the appellants or any of them defaults in the payment of the said sum of Kshs.5,000/= on the due date, the stay order granted herein shall stand automatically discharged in respect of the appellant/s in default.
  4. 4.The costs of the application shall be in the cause.

Authorities

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Legislation

  • Rent Restriction ActChapter 296 Laws of Kenya
  • Civil Procedure RulesOrder 42 Rule 6
On appeal from
Rent Restriction Tribunal
Nairobi Rent Restriction Case No. 193 of 2011
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

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, "Tony Mugambi & 8 others v Daniel Macharia & another [2019] KEELC 4830 (KLR)", Case Analysis (2019). Not stated in the excerpt (arising from Nairobi Rent Restriction Case No. 193 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4830/eng@2019-01-31

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