Encore Lounge & Grill Ltd v Quadco Two Hundred and Thirty Two Ltd & another (Environment and Land Appeal E024 of 2022) [2022] KEELC 2565 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence of the appeal for want of leave
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
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.
Whether a negative order can be stayed
An order dismissing a preliminary objection is a negative order incapable of execution and cannot be stayed
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.
Whether substantial loss was demonstrated
The appellant failed to establish that it would suffer substantial loss if the stay was not granted
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.
Legal principles established
#- 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
#- 1.The appellant's Notice of Motion application dated 5th April 2022 is dismissed
- 2.Costs of the application are awarded to the 1st respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.