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ELCDismissedELC Appeal at Mombasa arising from Business Premises Rent Tribunal Cause No. 293 of 2020 (Notice of Motion dated 28th September 2021)· [2022] KEELC 3663 (KLR)

Ess Pee Investment v Deegisat Servces Limited (Environment and Land Appeal E56 of 2021) [2022] KEELC 3663 (KLR)

Environment and Land Court
28 July 2022
3,228 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused a landlord's request to pause enforcement of a tribunal order because the landlord brought no real evidence and offered no security.

What this practically means

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Executive summary

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The Appellant, Ess Pee Ess Investment (landlord), moved the Environment and Land Court at Mombasa by Notice of Motion dated 28th September 2021 under Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking stay of execution of the ruling of the Vice Chair of the Business Premises Rent Tribunal delivered on 30th August 2021 in BPRT Cause No. 293 of 2020, which had prohibited the landlord from evicting the Respondent tenant or interfering with its quiet enjoyment pending the tribunal suit. The application was unopposed, the Respondent having failed to file its Replying Affidavit as directed. The court framed three issues: whether the threshold for stay was met, whether the parties were entitled to the relief, and costs. Applying Order 42 Rule 6 and settled precedent, the court held that although the 29-day delay in filing was not unreasonable, the Appellant failed to prove substantial loss: it produced no executed tenancy agreement evidencing the alleged new tenant in occupation, and the court applied the burden-of-proof rule under Sections 107-120 of the Evidence Act. Further, the Appellant offered no security for costs, which would tilt the balance of justice. The application was dismissed and, although costs ordinarily follow the event, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the conditions for stay of execution pending appeal under Order 42 Rule 6 were met

Holding

The application failed: substantial loss was not proved and no security for costs was offered

Reasoning

The court applied Order 42 Rule 6 and precedent requiring sufficient cause, substantial loss, no unreasonable delay and security. Delay of 29 days was held not undue. However, the Appellant's claim that a new tenant occupied the premises was unsupported by an executed tenancy agreement, and the Appellant offered no security, so the stay would tilt the balance of justice.

p. 6
02

Burden of proof on the applicant for stay

Holding

He who alleges must prove; the Appellant did not prove the alleged new tenancy or resulting loss

Reasoning

Relying on Sections 107 to 120 of the Evidence Act, the court held the appellant had to demonstrate tangible evidence of the loss it stood to suffer. Having annexed only the old tenancy agreement and not the alleged new tenancy agreement with the new tenant, the court assumed the status quo remained and found no substantial loss proved.

p. 5
03

Costs of the dismissed application

Holding

Although costs normally follow the event under Section 27(1), each party was ordered to bear its own costs

Reasoning

The court acknowledged the settled rule that costs follow the event, but in the interest of justice, equity and conscience directed that each party bear its own costs notwithstanding the dismissal of the application.

p. 6

Legal principles established

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  • An unopposed application must nonetheless be determined on its merits
  • A party alleging substantial loss must substantiate it with tangible documentary evidence
  • An applicant for stay who offers no security tilts the balance of justice against grant of the stay

Court orders

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  1. 1.The Notice of Motion application dated 28th September, 2021 is dismissed for lack of merit
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6; Order 42 Rule 4; Order 22 Rule 22
  • Civil Procedure Act, Cap. 21Section 3A; Sections 1A and 1B; Section 27(1)
  • Environment & Land Act, No. 19 of 2011Sections 3, 13 and 19
  • Evidence Act, Cap. 80Sections 107 to 120
  • Constitution of Kenya, 2010generally

Cases cited (9)

  • HGF – Versus – SM
    Civil Appeal No. 20 of 2020
  • RWW – Versus – EKW
    (2019) eKLR
  • Masisi Mwita – Versus – Damaris Wanjiku Njeri
    [2016] eKLR, Civil Appeal No. 107 of 2015
  • Vishram Rouji Halal – Versus – Thornton & Turpin
    Civil Appeal No. 15 of [1990] KLR 365
  • Hassan Guyo Wakolo – Versus – Straman E.A. Ltd.
    [2013]
  • Canvass Manufacturers Limited – Versus – Stephen Reuben Korunditu
    Civil Application No. 158 of 1994 [1994] LLR 4853
  • Stephen Wanjiku – Versus – Central Glass Industries Limited
    Nairobi HCCC No. 6726 of 1991
  • Christopher Were Barasa & another – Versus – Joseph Ndichu Ngige
    (2021) eKLR
  • Nephat Njiru M'kuma & 8 others – Versus – Mwaniki Muthee
    [2022] eKLR
On appeal from
Business Premises Rent Tribunal, Mombasa
BPRT Cause No. 293 of 2020
Jurisdiction invoked
Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act, Cap. 21 (first appeal from the Business Premises Rent Tribunal)

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, "Ess Pee Investment v Deegisat Servces Limited (Environment and Land Appeal E56 of 2021) [2022] KEELC 3663 (KLR)", Case Analysis (2022). ELC Appeal at Mombasa arising from Business Premises Rent Tribunal Cause No. 293 of 2020 (Notice of Motion dated 28th September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3663/eng@2022-07-28

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