G.H.Tanna & Sons Holding Limited & another v Wabuyele (Environment and Land Appeal 6 of 2022) [2022] KEELC 3155 (KLR)
The bottom line
#Kenya's Environment and Land Court paused a rent tribunal case because the landlord's appeal raised serious questions about the tribunal's power to hear it at all.
What this practically means
#Executive summary
#Key legal issues
#Whether sufficient cause existed to stay BPRT proceedings pending appeal
The application was merited: it was brought timeously, there was a valid and arguable appeal (particularly on the Tribunal's jurisdiction given the respondent's admission of eviction), and the applicants would be prejudiced if the Tribunal proceeded while jurisdiction was contested.
The Court applied order 42 rule 6 principles: valid appeal, sufficient cause, expedition, judicial time and absence of prejudice. The respondent's own sworn deposition that he had been evicted made the appeal arguable. Proceeding before the Tribunal risked wasted judicial time if the appeal on jurisdiction succeeded. The Court stressed it was not deciding the Tribunal's jurisdiction at that stage but only that the issue was arguable, warranting a stay.
Whether failure to first seek stay in the Tribunal rendered the application premature
Although order 42 rule 6(1) envisages first approaching the court appealed from, the Court excused the infraction in the exceptional circumstances of the case, since insisting on it would delay the appeal and occasion injustice, and the Rules are silent on consequences.
The Court acknowledged the proper procedure is to apply first to the Tribunal, but noted the Rules do not prescribe the consequence of non-compliance. Guided by sections 1A and 1B of the Civil Procedure Act and the Salat dicta on procedural lapses causing no prejudice, it held that in extremely rare and exceptional circumstances substantial justice prevails over a curable minor procedural infraction, as here, where the Tribunal had set strict compliance timelines running during the appeal window.
Whether the Court had jurisdiction to entertain the application and appeal
Section 15(1) of Cap 301 confers jurisdiction on the Environment and Land Court to hear appeals from Tribunal determinations, and read with order 42 rule 6(1) the Court had jurisdiction to determine the stay application.
The respondent argued the Court lacked jurisdiction because the Tribunal was properly seized of the dispute. The Court held that at this interlocutory stage the question was not the merits of the reference but a stay of proceedings in an appeal properly before it under section 15(1) of Cap 301; whether the Tribunal itself had jurisdiction was a matter for the appeal.
Who should bear the costs of the application
Costs were awarded to the applicants against the respondent, following the event under section 27 of the Civil Procedure Act.
The Court found no good basis to depart from the general rule that costs follow the event, the application having succeeded in full.
Legal principles established
#- An appeal does not operate as an automatic stay of proceedings; there must be sufficient cause shown.
- Stay of proceedings is discretionary and is granted in the interest of justice, weighing whether the appeal is arguable, expedition, judicial time and absence of prejudice.
- Procedural lapses not going to jurisdiction or causing no prejudice should not invalidate an application, in extremely rare and exceptional circumstances.
- Costs follow the event unless the court directs otherwise, under section 27 of the Civil Procedure Act.
Court orders
#- 1.Stay of proceedings in Nairobi Business Premises Rent Tribunal Case No. E669 of 2021; Andrew Biketi Wabuyele vs G.H. Tanna & Sons Holding Limited & Another pending the hearing and determination of the instant Appeal
- 2.Stay conditional on the Appellants filing the Record of Appeal together with the requisite certified order and documents within sixty (60) days from the date of the order and moving the Court accordingly, failing which the orders shall lapse
- 3.Costs of the application to be borne by the Respondent; Prayer (4) of the application allowed
- On appeal from
- Nairobi Business Premises Rent Tribunal
- BPRT Case No. E669 of 2021
- Jurisdiction invoked
- Section 15(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301, read with order 42 rule 6(1) of the Civil Procedure Rules, 2010; appellate jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "G.H.Tanna & Sons Holding Limited & another v Wabuyele (Environment and Land Appeal 6 of 2022) [2022] KEELC 3155 (KLR)", Case Analysis (2022). ELC Appeal (Notice of Motion dated 29/03/2022), Kitale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3155/eng@2022-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.