Wakf Commissioners of Kenya v Farida Almasi Mukira & 2 others [2021] KEELC 1443 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa paused execution of an eviction judgment because the business owner risked losing a Kshs. 60 million investment pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was made without unreasonable delay
The delay of just over 3 months was excused; the court gave the applicant the benefit of the doubt given an undertaking by Farida and Salma not to evict her.
Judgment was delivered on 16 July 2020 and the application filed on 29 October 2020, just above 3 months later. The court had given the applicant 3 months to vacate. The explanation was that Farida and Salma had also filed a notice of appeal and given the applicant a verbal undertaking not to evict her. Though counsel for the plaintiff objected, the court gave the benefit of doubt to the applicant.
Whether the applicant would suffer substantial loss
Yes - the applicant purchased the lease for Kshs. 60 million and operates a business; eviction or forced change of business pending appeal would occasion substantial loss.
The applicant purchased the suit property for Kshs. 60 million and runs a business to recoup her investment. The merits of the transfer and the alcohol issue are matters for the Court of Appeal. Balancing the injury to the plaintiff's faith against the applicant's injury if out of business, the scales tilt towards the applicant given the massive investment, which may be impossible to recover if eviction proceeds.
Security for due performance of the decree
Continued payment of rent in accordance with the lease suffices as security.
The court found no difficulty on the security limb. The applicant can continue paying rent as stipulated in the lease while the appeal is being heard, which protects the plaintiff's rent interest pending the appeal's conclusion.
Legal principles established
#- What constitutes unreasonable delay varies with the circumstances of each case.
- Where an applicant has massively invested in suit premises, substantial loss will be occasioned if she is evicted pending appeal, as it may be impossible to pick the pieces and start over even if she succeeds on appeal.
Court orders
#- 1.Execution of the judgment delivered on 16 July 2020 stayed pending the hearing and determination of the appeal
- 2.The applicant to pay any rents to the plaintiff in accordance with the terms of the lease pending conclusion of the appeal
- 3.Costs of the application to be costs in the appeal
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakf Commissioners of Kenya v Farida Almasi Mukira & 2 others [2021] KEELC 1443 (KLR)", Case Analysis (2021). Application dated 29 October 2020 (arising from judgment delivered 16 July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1443/eng@2021-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.