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ELCAllowedEnvironment and Land Appeal E028 of 2021· [2022] KEELC 15294 (KLR)

Amunabi & another v Demba

Environment and Land Court
8 December 2022
FNFM Njoroge
1,491 words in judgment
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The bottom line

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A Kenyan court paused an eviction ordered by a rent tribunal because the tenants' appeal was arguable and eviction would have made the appeal pointless.

What this practically means

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Executive summary

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The appellants, tenants in premises owned by the respondent, moved the Environment and Land Court at Nakuru by notice of motion dated December 16, 2021 seeking stay of execution of a ruling by the vice chairman of the Business Premises Rent Tribunal in Nakuru BPRT case number 146 of 2020 delivered on December 2, 2021, which ordered them to vacate the suit property within 60 days. They deposed that the tribunal subsequently issued an eviction order without hearing their applications, that they had made developments on the premises, and that eviction would render their filed appeal nugatory. The respondent opposed, contending the application and appeal were an abuse of process, disclosed no triable issue, and were brought to forestall her enjoyment of the fruits of her judgment. The parties filed submissions identifying three issues: substantial loss, unreasonable delay, and security. The court framed a single issue: whether the appellants met the threshold for stay of execution. Relying on Consolidated Marine v Nampijja and The Director of Pension v Abdul Majid Cockar, the judge held the jurisdiction discretionary under order 42 rule 6(1) of the Civil Procedure Rules, found the appeal arguable, and held that eviction before its determination, with possible alienation of the property, would render the appeal nugatory. The application was allowed with costs abiding the outcome of the appeal, and the parties were directed to prepare the appeal for hearing within 45 days.

Key legal issues

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01

Whether the threshold for stay of execution pending appeal was met

Holding

The application was allowed: the appeal was arguable and eviction before its determination would render it nugatory

Reasoning

The court found the jurisdiction discretionary under order 42 rule 6(1) of the Civil Procedure Rules. The appellants had lodged an appeal against the BPRT ruling ordering them to vacate within 60 days. If eviction proceeded, they would be evicted and the property possibly alienated, rendering the appeal nugatory. The appeal was found arguable, satisfying the threshold for stay.

Legal principles established

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  • Stay of execution pending appeal preserves the subject matter so that a successful appeal is not rendered nugatory
  • An applicant for stay must show the appeal is arguable and that it will be rendered nugatory unless stay is granted

Court orders

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  1. 1.Stay of execution of the BPRT vice chairman's ruling and all consequential orders given on December 2, 2021 pending the hearing and determination of the appeal
  2. 2.Costs to abide the outcome of the appeal
  3. 3.Parties directed to prepare the appeal for hearing within the next 45 days and set it down for hearing expeditiously

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1)
  • Civil Procedure RulesOrder 51 rule 1
  • Practice Directions on ELC Proceedings, Tenant (shops, hotels and catering establishments)rule 13

Cases cited (7)

  • Mukuma v Abuoga
    (1988) KLR

    Substantial loss where execution would shut down the applicants' businesses

  • Joel Kazungu Yaa Mangi v Director of Land Adjudication & Settlement & 3 Others
    [2021]

    Whether the application was made without unreasonable delay

  • Butt v Rent Restriction Tribunal
    (1979)

    Willingness to abide by conditions; considerations for stay

  • Kenya Shell Ltd v Kibiru & Another
    [1986] KLR 410

    Applicants must prove substantial loss; stay should not deprive respondent fruits of judgment

  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    E&L No 200 of 2012 [2014] eKLR

    Unreasonable delay disentitles an applicant to stay

  • Consolidated Marine v Nampijja & Another
    Civil Application No 93 of 1989

    Purpose of stay is to preserve the subject matter and safeguard the appellant's right of appeal

  • The Director of Pension v Abdul Majid Cockar
    Civil Appl No 66 of 1999

    Stay requires an arguable appeal that would be rendered nugatory absent stay

On appeal from
Business Premises Rent Tribunal (BPRT), Nakuru
Nakuru BPRT case number 146 of 2020
Jurisdiction invoked
Order 42 rule 6(1) of the Civil Procedure Rules; rule 13 of the Practice Directions on ELC Proceedings, Tenant (shops, hotels and catering establishments)

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, "Amunabi & another v Demba", Case Analysis (2022). Environment and Land Appeal E028 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15294/eng@2022-12-08

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