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ELCOtherNairobi BPRT Appeal (arising from Nairobi BPRT No. 232 of 2021)· [2022] KEELC 1562 (KLR)

Jackson Kamau Ndegwa & another v Everlyne Muthamia & 2 others [2022] KEELC 1562 (KLR)

High Court of Kenya
15 February 2022
MOMogeni
1,615 words in judgment
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The bottom line

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Kenya's High Court refused to reopen evicted premises but froze the situation quo pending appeal, confirming judges can issue status quo orders even when nobody asks for them.

What this practically means

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Executive summary

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This is a ruling by Mogeni J of the High Court at Nairobi on a Notice of Motion dated 12/10/2021 lodged by the 1st Appellant, acting in person, in an appeal against the judgment of the Business Premises Rent Tribunal (Hon. Andrew Muma, Vice-Chairman) delivered on 18/06/2021 in Nairobi BPRT No. 232 of 2021. The appellants sought orders to reopen their business premises, preservatory orders pending appeal, and damages, complaining of eviction from the premises without notice. The respondent, the lessor/property manager, opposed the application, deposing that a new tenant had already been admitted under a three-year lease commencing 01/10/2021 and that granting the prayers would be an exercise in futility; she also argued the application was defective for lacking a prayer for stay of execution and was lodged 44 days after the ruling. The court framed a single issue: whether the appellants were entitled to the orders sought. Noting that the appellants had already been evicted and that a third party occupied the premises, the court held that the preservatory orders as framed could not issue, but that the status quo should be maintained to preserve the substratum of the appeal, which turns on the disputed payment of rent. Relying on Mugah vs Kunga and Fatuma Abdi Jillo, the court affirmed its discretion to issue status quo orders to preserve the subject matter. The application was not allowed as framed; status quo was maintained pending the appeal, with costs in the cause.

Key legal issues

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01

Whether the court can grant relief where preservatory orders sought have been overtaken by events

Holding

The court will not grant orders in vain but may preserve the substratum of the suit via a status quo order to keep the appeal from being academic

Reasoning

The appellant admitted eviction and the respondent admitted leasing to a third party under a fresh three-year lease. Reopening the premises would be futile. However, a Memorandum of Appeal is on record raising the core dispute over payment of rent, so the court invoked its discretion to maintain the status quo to enable the appeal to be ventilated.

p. 2
02

Whether a status quo order requires a specific prayer

Holding

No; the court may make status quo orders on its own motion in exercise of general discretionary powers

Reasoning

Relying on Mugah vs Kunga and Fatuma Abdi Jillo v Kuro Lengesen, the court held that status quo orders preserve the subject matter, may issue suo motu, and are not subject to the conditions for injunctive relief, though their effect may coincide with a prohibitory injunction in certain circumstances.

p. 2

Legal principles established

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  • Status quo orders should issue to preserve the subject matter of litigation, and the court may make them on its own motion without them being specifically prayed
  • Status quo orders differ from injunctions; the conditions for an injunction need not be established for a status quo order

Court orders

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  1. 1.The application as framed was not allowed
  2. 2.That the obtaining status quo be maintained, pending the hearing and determination of the Appeal
  3. 3.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 2
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63
  • Judicature ActChapter 8

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 Applt. (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
Business Premises and Rent Tribunal
Nairobi BPRT No. 232 of 2021
Jurisdiction invoked
Appellate jurisdiction over BPRT decisions; application brought under Order 40 Rule 2 of the Civil Procedure Rules, Sections 1A, 1B, 3, 3A and section 63 of the Civil Procedure Act and the Judicature Act Chapter 8

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jackson Kamau Ndegwa & another v Everlyne Muthamia & 2 others [2022] KEELC 1562 (KLR)", Case Analysis (2022). Nairobi BPRT Appeal (arising from Nairobi BPRT No. 232 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1562/eng@2022-02-15

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