Tony Mugambi & 8 others v Daniel Macharia & another [2019] KEELC 4830 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the misworded application could be treated as one for stay of execution
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.
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.
Whether the conditions for stay were satisfied
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.
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.
Legal principles established
#- 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
#- 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.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.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.The costs of the application shall be in the cause.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.