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ELCDismissedNot stated in judgment (Appeal from Business Premises Rent Tribunal Case No. 260 of 2021)· [2022] KEELC 3514 (KLR)

Party of Democratic Unity v Manager of Kenya House Complex & 2 others (Environment and Land Appeal E001 of 2022) [2022] KEELC 3514 (KLR)

High Court of Kenya
14 July 2022
5,380 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Appellant/Applicant, a political party acting through its chairman Isaiah Ndirangu, moved the court by application dated January 12, 2022 seeking stay of execution of a ruling delivered on December 14, 2021 by Honourable Gakuhi Chege, Vice Chairman of the Business Premises Rent Tribunal, in Tribunal Case No. 260 of 2021, pending the hearing of an intended appeal. The Tribunal had found the Appellant in rent arrears of Kshs.850,000 and ordered payment within 30 days; the landlord instructed an auctioneer to levy distress. The Appellant argued that distraint would interfere with confidential member records and its members' political rights under Article 38 of the Constitution, that the application was filed without delay, and that as a political party it should not be compelled to give monetary security. The Respondents countered that the decree was monetary and refundable, that no substantial loss was shown, and that the Appellant refused to offer security. The court framed four issues. It held a memorandum of appeal raised arguable grounds (sufficient cause) and, applying Order 50 rule 4 of the Civil Procedure Rules excluding the vacation period, that the application was filed timeously. However, it found no evidence of substantial loss: the dispute concerned recovery of rent, not deregistration or disenfranchisement, and the landlord could refund any decretal sum if the appeal succeeded. The court further held provision of security is mandatory as a matter of law, only its nature and quantum being discretionary, and that political parties enjoy no preferential treatment under Article 27. The application was dismissed with costs to the Respondents and the interim stay granted on January 31, 2022 was discharged.

Key legal issues

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01

Sufficient cause/basis for stay

Holding

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

Reasoning

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.

p. 6
02

Undue delay in filing the application

Holding

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

Reasoning

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.

p. 7
03

Substantial loss

Holding

The Appellant failed to establish substantial loss; the decree was monetary, and the 1st Respondent landlord had resources to refund if the appeal succeeded

Reasoning

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.

p. 9
04

Security for due performance of the decree

Holding

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

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The Application dated January 12, 2022 is dismissed with costs to the Respondents
  2. 2.The orders of interim stay of execution granted on January 31, 2022 are discharged

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 38
  • Constitution of Kenya, 2010Article 81
  • Constitution of Kenya, 2010Article 27(1) & (2)
  • Landlord and Tenant (Shops, Hotels & Catering Establishment) Act, Chapter 301 Laws of KenyaSection 15
  • Civil Procedure Rules, 2010Order 42 rule 6(1) and 6(2)
  • Civil Procedure Rules, 2010Order 50 rule 4
  • Civil Procedure Rules, 2010Order 22 rule 25 (quoted within Charles Wahome Gethi v Angela Wairimu Gethi)

Cases cited (10)

  • HGE versus SM
    (2020) eKLR
  • Kenya Power & Lighting Company Ltd versus Esther Wanjiru Wakobi
    (2014) eKLR
  • Stanley Kiplangat Rono & Another versus Wiliam Kiprotich Cherus
    (2021) eKLR
  • Sammy Some Kosgei versus GeoRge Jelei Boit
    (2013) eKLR
  • Everlyne Jebitok Keter versus Henry Kiplangat Muge & 2 others
    (201) eKLR
  • Robert Ngaruiya Chuth versus joseph Chege Ndungu
    (2014) eKLR
  • Charls Wahome versus Angela Wairimu Gethi
    (2008) eKLR
  • Kenya Shell Ltd v Benjamin Karuga Kiburu & Another
    (1986) eKLR
  • Charles Wahome Gethi Versus Agenlla Wairimu Gethi, Civil Application No. 302 of 2007
    (2008) eKLR
  • Gianfranco Manenthi & another vs. Africa Merchant Assurance Company Ltd
    [2019] eKLR
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

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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, "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.