Party of Democratic Unity v Manager of Kenya House Complex & 2 others (Environment and Land Appeal E001 of 2022) [2022] KEELC 3514 (KLR)
The bottom line
#Kenya's High Court refused to pause collection of Kshs.850,000 rent arrears because the political party could not prove it would suffer real, irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Sufficient cause/basis for stay
The Appellant established sufficient cause by filing a Memorandum of Appeal raising arguable grounds, and had a right of appeal under section 15 of Cap 301
The court noted a Memorandum of Appeal had been lodged which on its face raised issues of fact and law worthy of interrogation, and that a right of appeal vested by statute. Sufficient cause was therefore demonstrated at this threshold stage.
Undue delay in filing the application
The application filed on January 12, 2022 was filed without undue delay, as the period December 21, 2021 to January 13, 2022 is excluded under Order 50 rule 4 of the Civil Procedure Rules
The impugned ruling was delivered on December 14, 2021 and the application filed on January 12, 2022. Applying Order 50 rule 4, the Christmas vacation period is omitted from computation of time, so the application was lodged timeously with due promptitude.
Substantial loss
The Appellant failed to establish substantial loss; the decree was monetary, and the 1st Respondent landlord had resources to refund if the appeal succeeded
The Appellant relied on threats to its political rights under Article 38 and sensitive member records, but the court held the dispute concerned recovery of rent arrears, not disenfranchisement or deregistration. No deposition showed payment of Kshs.850,000 would ground the Appellant's activities to a halt or that refund would be impossible.
Security for due performance of the decree
Security is mandatory as a matter of law; the Appellant's contention that as a political party it need not offer security was rejected, Article 27 guaranteeing equal treatment of litigants
The court held that offering security is a prerequisite for benefiting from the court's discretion; only the nature and quantum lie in discretion. The Appellant argued against rather than offered security, exhibiting no bona fides, though this point became academic since the application failed on substantial loss.
Legal principles established
#- Substantial loss is the cornerstone of an application for stay of execution pending appeal; absent proof of substantial loss, stay ought not to be granted
- The evidential burden of proving substantial loss lies upon the applicant for stay
- Provision of security for due performance of the decree is mandatory, a matter of law and not of discretion; only the nature, type, scope and quantum fall within the court's discretion
- The court vacation period under Order 50 rule 4 of the Civil Procedure Rules is excluded in computing time for filing applications
Court orders
#- 1.The Application dated January 12, 2022 is dismissed with costs to the Respondents
- 2.The orders of interim stay of execution granted on January 31, 2022 are discharged
- On appeal from
- Business Premises Rent Tribunal
- Tribunal Case No. 260 of 2021
- Jurisdiction invoked
- Section 15 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya (right of appeal from the Tribunal); application brought under Order 42 rule 6 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Party of Democratic Unity v Manager of Kenya House Complex & 2 others (Environment and Land Appeal E001 of 2022) [2022] KEELC 3514 (KLR)", Case Analysis (2022). Not stated in judgment (Appeal from Business Premises Rent Tribunal Case No. 260 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3514/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.