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ELCAllowedNot stated in full in the judgment (appeal from Naivasha BPRT Case No. E001 of 2021)· [2022] KEELC 1047 (KLR)

New Solta Ltd v Naivasha Southlake Sacco Ltd [2022] KEELC 1047 (KLR)

High Court of Kenya
3 March 2022
3,070 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the High Court at Nakuru (L. A. Omollo, J) determined the Appellant/Applicant's Notice of Motion dated 20th December 2021 seeking stay of execution of the ruling of the Business Premises Rent Tribunal at Naivasha delivered on 1st December 2021 in Naivasha BPRT Case No. E001 of 2021, which had dismissed the applicant's reference and ordered it to vacate the suit premises within 60 days. The applicant contended the application was made expeditiously, the appeal was arguable and eviction would render it nugatory. The respondent opposed, contending no tenancy relationship existed (hence no Tribunal jurisdiction), the Tribunal had lawfully exercised discretion, and the applicant's continued occupation prejudiced its business. The court framed two issues: whether the conditions for stay pending appeal were met, and costs. Applying Order 42 Rule 6(2) and the overriding objective (sections 1A and 1B of the Civil Procedure Act), the court found no unreasonable delay; that since the decree was for eviction rather than money, refusal of stay would occasion substantial loss; and that security was adequately achieved by directing the applicant to continue meeting its contractual obligations for use of the premises, failing which the stay would stand vacated. The court declined to inquire into the merits of the appeal. The application was allowed with costs in the appeal.

Key legal issues

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01

Timeliness of the application

Holding

The application was made without unreasonable delay

Reasoning

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.

p. 3
02

Substantial loss

Holding

Eviction would constitute substantial loss if stay is not granted

Reasoning

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.

p. 4
03

Security for due performance of the decree

Holding

Balanced security achieved by requiring the applicant to continue meeting contractual obligations, failing which stay lapses

Reasoning

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.

p. 5
04

Costs of the application

Holding

Costs follow the event but were made costs in the appeal

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 3.In the event of failure to comply with the order to meet contractual obligations, the order of stay shall stand vacated
  4. 4.The cost of this application shall be in the Appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 42; Order 43
  • Civil Procedure Rules, 2010Order 41 rule 6
  • Civil Procedure Act (Cap 21, Laws of Kenya)Section 3A
  • Civil Procedure Act (Cap 21, Laws of Kenya)Sections 1A and 1B
  • Civil Procedure Act (Cap 21, Laws of Kenya)Section 27

Cases cited (13)

  • Victory Construction Vs BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Vishram Ravji Halai Vs Thornton & Turpin
    Civil Application No. 15 of 1990 [1990] KLR 365
  • Butt vs. Rent Restriction Tribunal
    [1979]
  • Silverstein Vs Chesoni
    (2002) 1 KLR 867
  • Shell Ltd Vs Kibiru & Another
    [1986] KLR 410
  • Nduhiu Gitahi and Another Vs Anna Wambui Warugongo
    [1988] 2 KAR 621
  • Rosengrens Vs Safe Deposit Centers Limited
    [1984] 3 ALLER 198
  • Absalom Dova Vs Tarbo Transporters
    [2013] eKLR
  • Mwaura Karuga t/a Limit Enterprises Vs Kenya Bus Services Ltd & 4 Others
    [2015] eKLR
  • Gianfranco Manenthi & another Vs Africa Merchant Assurance Company Ltd
    [2019] eKLR
  • RWW Vs EKW
    [2019] eKLR
  • Wilson Vs Church (No 2)
    (1879) 12 ChD 454
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.