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ELCStruck OutMisc. Application dated 24th November 2021 (Notice of Motion)· [2022] KEELC 2162 (KLR)

Kenya Harlequin Footbal Club v Quaco Two Hundred and Thirty-Two Ltd; Encore Lounge & Grill (Intended Interested Party) [2022] KEELC 2162 (KLR)

Environment and Land Court
17 January 2022
MMM. D. Mwangi
1,966 words in judgment
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The bottom line

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A Kenyan court struck down a stay application because no actual appeal had been filed yet, meaning you must file the appeal before asking a court to suspend a Tribunal order.

What this practically means

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Executive summary

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Kenya Harlequin Football Club moved the Environment and Land Court by Notice of Motion dated 24th November 2021 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking a stay of execution of a Ruling delivered on 23rd November 2021 by the Chairperson of the Business Premises Rent Tribunal (Hon. Patricia May) and maintenance of status quo ante pending an intended appeal. The dispute arose from tenancy proceedings (BPRT Case No. 473 of 2020) in which the Tribunal had decreed rent arrears of Kshs.3,195,539/= against the Respondent; the Respondent claimed a surcharge of Kshs.2,126,000/= offset the debt, and later obtained ex parte orders of 19th October 2021, amended on 23rd November 2021, directing reopening of the premises. Encore Lounge & Grill Ltd was joined as an interested party and supported the application. The Respondent opposed, contending the application was fatally incompetent because no appeal had been filed, and that the court exercises only appellate jurisdiction over Tribunal matters. The Applicant and interested party filed submissions; the Respondent did not. Applying the Lilian S v Caltex principle, the court held that its appellate jurisdiction could only be invoked by a filed appeal; none existed, the application referring only to an 'intended appeal'. The application was struck out with costs.

Key legal issues

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01

Jurisdiction to entertain an application for stay of execution pending an intended appeal where no appeal has been filed

Holding

The court had no jurisdiction; the application was incompetent ab initio and was struck out

Reasoning

The Applicant invoked Order 42 Rule 6 seeking stay pending an 'intended appeal', but no memorandum of appeal had been filed at the time of the application. Under Order 42 Rule 1(1), appeals to the High Court require a Memorandum of Appeal. The court relied on the Owners of Motor Vessel Lilian S principle that jurisdiction is everything and declined to take any further step.

p. 3

Legal principles established

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  • A court's appellate jurisdiction can only be invoked where an appeal has been filed in accordance with the law; an application for stay in respect of an intended appeal filed before any appeal exists is incompetent ab initio

Court orders

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  1. 1.The Notice of Motion application dated 24th November 2021 is struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 1(1)

Cases cited (1)

  • The Owners of Motor Vessel Lilian S Vs Caltex Kenya Ltd
    (1989) KLR
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over Business Premises Rent Tribunal matters, invoked under Order 42 Rule 6 of the Civil Procedure Rules; jurisdiction found wanting as no appeal had been filed

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, "Kenya Harlequin Footbal Club v Quaco Two Hundred and Thirty-Two Ltd; Encore Lounge & Grill (Intended Interested Party) [2022] KEELC 2162 (KLR)", Case Analysis (2022). Misc. Application dated 24th November 2021 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2162/eng@2022-01-17

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