Adventure Adrenalin Africa Limit v Hellen Kay Hartley [2022] KEELC 818 (KLR)
The bottom line
#A Kenyan tenant business won a stay of eviction pending appeal, but only after committing to pay all outstanding rent within 45 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant filed an appeal and the application for stay without unreasonable delay
- 2.Whether the applicant will suffer substantial loss if stay of execution is not granted
- 3.What security, if any, the applicant ought to provide for the due performance of the decree
Key legal issues
#Whether an appeal was filed timeously
The criterion was met - the appeal and the stay application were filed without delay alongside each other
The court noted the certified copy of the Tribunal judgment delivered on 5 November 2021 and the Memorandum of Appeal dated 8 November 2021 filed on 9 November 2021, with the stay application filed alongside the appeal, satisfying the requirement of no unreasonable delay under Order 42 Rule 6.
Whether substantial loss would result if stay is denied
Substantial loss was established - enforcement of the eviction order would close the applicant's business and leave nothing to preserve
The court viewed the business as a running business and found the effect of enforcement would be loss of the business; notice would merely mitigate losses. The court held the irreparable-loss criterion is available only to the applying party, not the successful party, and found the criterion met despite the respondent's contrary submissions.
What security should be given for due performance of the decree
Security is mandatory but its terms are at the court's discretion; the earlier Kshs. 350,000 security order was reviewed upwards to require payment of outstanding monthly rent at Kshs. 50,000 from 1st May 2017 to 5th November 2021 within 45 days, failing which the stay lapses automatically
The court exercised its discretion on the totality of the circumstances, noting no rent had been paid since the dispute began although the respondent had refused to accept rent. It reasoned that security protects the interests of the successful party should the appeal not succeed.
Legal principles established
#- The criterion for irreparable loss under Order 42 is available only to the party applying for stay, not to the successful party
- A party seeking stay must demonstrate substantial loss, timely filing of the appeal and application, and provide security as ordered by the court
- The transfer of a suit property to a third party during a disputed tenancy does not justify refusing a stay of eviction, the landlord having transferred the premises while the tenancy was in dispute
Court orders
#- 1.The Notice of Motion dated 8/11/21 is allowed in terms of prayer No. 3 - stay of execution of the judgment and orders of the Business Premises Rent Tribunal [Mombasa] dated 5th November 2021 pending the hearing and determination of the Appeal
- 2.The order for security granted on 9th November 2021 and issued on 10th November 2021 is reviewed upwards: the Applicant/Appellant shall pay to the Respondent the monthly rent outstanding at the rate of Kshs. 50,000 from 1st May 2017 to 5th November 2021 within 45 days of the date of the order
- 3.The Respondent shall forthwith but not later than 14 days from the date of the order furnish to the Applicant/Appellant the designated account for purposes of the above payment
- 4.Subject to (b), failure by the Appellant/Applicant to deposit the security as ordered, the orders of stay shall automatically be vacated
- 5.The security deposited pursuant to the order of the court issued on 9th November 2021 shall be retained as such in addition to the security in (a) above until further orders of the court
- 6.Costs shall follow the outcome of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal [Mombasa]
- B.P.R.T 17 of 2021
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Respondent's request for conditional security comprising accrued mesne profits of Kshs. 28,600,000, monthly rent of Kshs. 500,000 (or Kshs. 1,500,000 per quarter) and upfront Kshs. 10,500,000 for comparable accommodation
The court held that security need only protect the interests of the successful party and reviewed the earlier security upwards based on the monthly rent of Kshs. 50,000 rather than the amounts sought
Respondent's submission that stay orders would be unenforceable because the suit property had been transferred to Kama Kawaida Property Limited
The court held the transfer was irrelevant to the stay application since the applicant was in the premises and the stay was to stop the eviction
Costs
Costs shall follow the outcome of the Appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. The Notice of Motion dated 8/11/21 is hereby allowed in terms of prayer No. 3.
c) THAT subject to (b) above failure by the Appellant/Applicant to deposit the security as ordered in (a) above, the orders of stay shall automatically be vacated.
The criterion for irreparable loss under order 42 is in my view only available to the party who is seeking the remedy, that is the party applying since they will be affected. It is not available to the successful party.
The Respondent clearly knew that the tenancy is in dispute and chose to transfer the suit premises to a 3rd party, let the Respondent deal with it.
Issues in the judgment
#The judgment inconsistently describes the applicant's role, referring in places to 'Respondents' where 'Applicants' appears intended (e.g. 'the materials placed before this court by the Respondents')
Inconsistency in the date of the Memorandum of Appeal - described as dated 9/12/21 in one passage and 8th November 2021 in another
The affidavit of the applicant's director is described as sworn on 6th November 2021 yet the application itself is dated 8/11/2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adventure Adrenalin Africa Limit v Hellen Kay Hartley [2022] KEELC 818 (KLR)", Case Analysis (2022). BPRT 17 of 2021 (appeal therefrom); Notice of Motion dated 8/11/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/818/eng@2022-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.