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ELCOtherNotice of Motion dated 5th January, 2021 (Appeal arising from Kajiado CMC Tribunal Case No. E1 of 2020)· [2021] KEELC 912 (KLR)

Monica Mukuhi Khirrecu & another v Caleb Omboga Moturi [2021] KEELC 912 (KLR)

High Court of Kenya
16 November 2021
COCHRISTINE OCHIENG
2,359 words in judgment
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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 was a ruling by the High Court at Machakos (Christine Ochieng, J) on a Notice of Motion dated 5th January 2021 by the 1st Appellant, Monica Mukhi Khirrecu, brought under Order 40 Rule 2 of the Civil Procedure Rules in an appeal against orders issued on 14th December 2020 by the Resident Magistrate's Court, Kajiado (in Kajiado CMC Tribunal Case No. E1 of 2020). The Applicant sought stay of those orders, an injunction maintaining status quo, and their setting aside, contending she had leased the premises to a new tenant after evicting the Respondent on 11th November 2020 for rent arrears exceeding Kshs. 170,000. The Respondent opposed, arguing the eviction contravened subsisting Business Premises Rent Tribunal orders of 20th December 2018 and 5th July 2019, that a reference was pending before the BPRT, and that following the ELRC ruling in Petition 100/2019 finding the BPRT lacked quorum, the magistrate's court was his only recourse. The court framed one issue: whether the Appellants were entitled to the orders sought. It held the omnibus prayer cured the alleged defect, associated itself with authority that status quo orders preserve the subject matter and need not be specifically prayed for, and noted the Respondent was already evicted with a third party in occupation. Declining to allow the application as framed, the court directed that the obtaining status quo be maintained with no party interfering with the suit premises pending the appeal, directed expedition of the appeal, and ordered costs in the cause.

Key legal issues

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01

Whether the application was fatally defective for lacking a prayer for stay pending appeal

Holding

No; the omnibus prayer for orders meeting the ends of justice allowed the court to pursue substantive justice

Reasoning

The Respondent argued no prayer sought stay pending hearing of the appeal. The court held that prayer no. 4, seeking any orders meeting the ends of justice, empowered the court to focus on substantive justice rather than technical defect, consistent with the practice of issuing status quo orders on the court's own motion.

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02

Whether the Appellants were entitled to stay of execution, injunction and setting aside of the orders of 14th December 2020

Holding

The application as framed was not allowed; instead a status quo order preserving the suit premises pending appeal was issued

Reasoning

The court noted the Respondent had already been evicted and a third party leased the premises, and that the Respondent made a strong case for dismissal. However, because a Memorandum of Appeal was on record, the court found it pertinent to preserve the substratum of the suit by ordering maintenance of the obtaining status quo so the appeal would not be rendered academic.

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Legal principles established

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  • Status quo orders may be made by a court on its own motion in exercise of its general jurisdiction and need not be specifically prayed for
  • Status quo orders preserve the subject matter and are distinct from injunctions, so the conditions for an injunction need not be satisfied

Court orders

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  1. 1.That the obtaining status quo be maintained wherein no party should interfere with the suit premises, pending the hearing and determination of the Appeal
  2. 2.That the hearing of the Appeal be expedited
  3. 3.Costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 2
  • Landlord and Tenant (Shop, Hotel and Catering Establishment) ActSection 4

Cases cited (6)

  • Mugah vs. Kunga
    [1988] KLR 748
  • Fatuma Abdi Jillo v Kuro Lengesen & another
    [2021] eKLR
  • Walter Anyango T/A Anyango Ogutu & Co Advocates Vs Barclays Pension Services Limited & Another
    [2019] eKLR
  • The Chairman Business Premises Tribunal at Mombasa Exparte Baobab Beach Resort (Mbsa) Ltd (UR)
    Msa Misc Appln. (J.R) No. 26 of 2010
  • Thugi River Estate Limited & another Vs National Bank of Kenya Limited & 3 others
    [2015] e K.L.R
  • Saifudeen Abdullahi & 4 Others
    Mombasa High Court Misc. Civil Cause No. 11 of 2012
On appeal from
Resident Magistrate's Court, Kajiado
Kajiado CMC Tribunal Case No. E1 of 2020
Jurisdiction invoked
Order 40 Rule 2 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Monica Mukuhi Khirrecu & another v Caleb Omboga Moturi [2021] KEELC 912 (KLR)", Case Analysis (2021). Notice of Motion dated 5th January, 2021 (Appeal arising from Kajiado CMC Tribunal Case No. E1 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/912/eng@2021-11-16

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