New Solta Ltd v Naivasha Southlake Sacco Ltd [2022] KEELC 1047 (KLR)
The bottom line
#Kenya's High Court halted an eviction ordered by a rent tribunal, letting the tenant stay while its appeal is heard—provided it keeps paying rent.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the application
The application was made without unreasonable delay
The court applied the first criterion of Order 42 Rule 6(2). The Tribunal ruling was delivered on 1st December 2021 and the application and memorandum of appeal were filed on 21st December 2021, a gap of only twenty days, which the court found expeditious.
Substantial loss
Eviction would constitute substantial loss if stay is not granted
Distinguishing money decrees, where refusal of stay would not render an appeal nugatory, the court held that the Tribunal's order was for eviction. Loss of the suit premises through eviction could not be undone if the appeal later succeeded, so substantial loss was demonstrated.
Security for due performance of the decree
Balanced security achieved by requiring the applicant to continue meeting contractual obligations, failing which stay lapses
Relying on Nduhiu Gitahi, Absalom Dova and Mwaura Karuga, the court held that security must achieve due performance of the decree while holding the ring even-handedly. Requiring continued payment of contractual obligations for use of the premises protected the respondent during the pendency of the appeal.
Costs of the application
Costs follow the event but were made costs in the appeal
Under Section 27 of the Civil Procedure Act costs follow the event per Hussein Janmohamed, but the court, exercising discretion and balancing interests, directed that the costs of the application be costs in the appeal.
Legal principles established
#- Stay of execution under Order 42 Rule 6(2) is discretionary and conditional on no unreasonable delay, demonstration of substantial loss, and furnishing of security
- Where the decree is for eviction (not payment of money), refusal of stay would render the appeal nugatory and substantial loss is demonstrated
- The court is not required to inquire into the merits of the intended appeal when determining an application for stay under Order 42 Rule 6(2)
Court orders
#- 1.There shall be an order of stay of execution of the Ruling and order of the Business Premises Tribunal, delivered on 1st December, 2021 in Naivasha BPRT Case No. E001/2021 pending the hearing and determination of the Applicant's Appeal
- 2.The Applicant/Appellant shall continue to meet its contractual obligations, in respect of continued use of the suit premises, pending the hearing and determination of this Appeal
- 3.In the event of failure to comply with the order to meet contractual obligations, the order of stay shall stand vacated
- 4.The cost of this application shall be in the Appeal
- On appeal from
- Business Premises Rent Tribunal at Naivasha
- Naivasha BPRT Case No. E001 of 2021
- Jurisdiction invoked
- Order 42 Rules 42 and 43 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap 21, Laws of Kenya)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Molonket v East African Portland Cement Company (Cause 198 of 2019) [2023] KEELRC 3439 (KLR)[2023] KEELRC 3439 (KLR)23 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "New Solta Ltd v Naivasha Southlake Sacco Ltd [2022] KEELC 1047 (KLR)", Case Analysis (2022). Not stated in full in the judgment (appeal from Naivasha BPRT Case No. E001 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1047/eng@2022-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.