Ess Pee Investment v Deegisat Servces Limited (Environment and Land Appeal E56 of 2021) [2022] KEELC 3663 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the conditions for stay of execution pending appeal under Order 42 Rule 6 were met
The application failed: substantial loss was not proved and no security for costs was offered
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.
Burden of proof on the applicant for stay
He who alleges must prove; the Appellant did not prove the alleged new tenancy or resulting loss
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.
Costs of the dismissed application
Although costs normally follow the event under Section 27(1), each party was ordered to bear its own costs
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 28th September, 2021 is dismissed for lack of merit
- 2.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.