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ELCDismissedNot stated in the judgment (appeal against ruling in CMCC No. MCRTC 002 of 2021)· [2022] KEELC 2565 (KLR)

Encore Lounge & Grill Ltd v Quadco Two Hundred and Thirty Two Ltd & another (Environment and Land Appeal E024 of 2022) [2022] KEELC 2565 (KLR)

Not stated in the judgment; the presiding officer is styled 'JUDGE' and the matter is an appeal from the Chief Magistrate's Court at Nairobi
5 July 2022
3,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a company's attempt to pause a rent dispute case because it filed its appeal without the required court permission.

What this practically means

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Executive summary

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This is a ruling on the appellant's Notice of Motion dated 5th April 2022, by which Quadco Two Hundred and Thirty Two Limited sought a stay of further proceedings before the lower court and a stay of the orders made there, pending the hearing of its application and appeal against the ruling of Hon. H. M. Nyaga CM of 29th March 2022 dismissing its preliminary objection. The preliminary objection had challenged the lower court's jurisdiction to join the appellant to the enforcement proceedings arising from a Business Premises Rent Tribunal case, to punish for contempt, to grant an injunction, and to deal with the matter given the value of the appellant's developments. The 1st respondent, Kenya Harlequin Rugby Limited, opposed the application through a replying affidavit and a preliminary objection, contending that the appeal required leave under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules and was incompetent, and that the order appealed against was a negative order incapable of stay. The court agreed, holding that no leave had been sought or obtained, rendering the appeal incompetent and unable to sustain an application for stay of proceedings or execution. It further held that the order of 29th March 2022, merely dismissing a preliminary objection, was a negative order incapable of execution and thus incapable of being stayed. On the merits, the court found no demonstration of substantial loss, noting the appellant's complaints could be raised before the lower court with appeal rights preserved. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Competence of the appeal for want of leave

Holding

The appeal, being against a decision for which leave was required under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, was incompetent as no leave was obtained

Reasoning

The 1st respondent raised a preliminary objection that the appeal required leave under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules. The appellant did not respond to this aspect. The court found no evidence that leave was sought or obtained and held that without it the appeal was incompetent and could not support a stay application.

p. 5
02

Whether a negative order can be stayed

Holding

An order dismissing a preliminary objection is a negative order incapable of execution and cannot be stayed

Reasoning

Relying on Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Raymond M. Omboga v Austine Pyan Maranga, the court held that a dismissal order, which directs no party to do or refrain from doing anything, is incapable of execution save perhaps for costs, and is therefore incapable of stay.

p. 5
03

Whether substantial loss was demonstrated

Holding

The appellant failed to establish that it would suffer substantial loss if the stay was not granted

Reasoning

The court found that what the lower court dealt with was a preliminary objection and the 1st respondent's application remained unheard. The appellant's substantive complaints, such as not being a party to the tribunal proceedings and lack of service, could be raised before the lower court, with a right of appeal preserved thereafter. Irreparable loss was not demonstrated.

p. 5

Legal principles established

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  • An appeal against a decision lying only by leave is incompetent where no leave has been sought or obtained, and cannot sustain an application for stay of proceedings or execution
  • A dismissal order is a negative order, incapable of execution and therefore incapable of being stayed

Court orders

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  1. 1.The appellant's Notice of Motion application dated 5th April 2022 is dismissed
  2. 2.Costs of the application are awarded to the 1st respondent

Authorities

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Legislation

  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenyasection 14(1); section 14
  • Civil Procedure Act, Chapter 21 Laws of Kenyasection 75; section 34
  • Civil Procedure RulesOrder 42 Rule 6(2); Order 43
  • Magistrates' Court Act 2015section 10

Cases cited (3)

  • Kenya Shell Limited v Karuga
    (1982 – 1988) I KAR 1018
  • Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah
    [20008] eKLR (as printed in the judgment)
  • Raymond M. Omboga v Austine Pyan Maranga
    Kisii HCCA No 15 of 2010
On appeal from
Chief Magistrate's Court (lower court in CMCC No. MCRTC 002 of 2021)
MCRTC 002 of 2021
Jurisdiction invoked
Appeal from the Chief Magistrate's Court; jurisdiction contested under section 75 of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order 43 of the Civil Procedure Rules (leave required)

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, "Encore Lounge & Grill Ltd v Quadco Two Hundred and Thirty Two Ltd & another (Environment and Land Appeal E024 of 2022) [2022] KEELC 2565 (KLR)", Case Analysis (2022). Not stated in the judgment (appeal against ruling in CMCC No. MCRTC 002 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2565/eng@2022-07-05

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