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ELCDismissedEnvironment and Land Appeal E037 of 2022· [2023] KEELC 731 (KLR)

Obimbo v Ochieng (Environment and Land Appeal E037 of 2022) [2023] KEELC 731 (KLR)

Environment and Land Court (High Court tier exercising appellate jurisdiction over the Rent Restriction Tribunal)
14 February 2023
SOS. Okong'o
1,673 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kisumu tenant lost his bid to pause a rent tribunal's order because his appeal targeted the wrong decision and he showed no harm.

What this practically means

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Executive summary

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The appellant, a tenant of the respondent on Plot No 57, Migosi estate, Kisumu, moved the court by notice of motion dated October 26, 2022 under Order 42 rule 6 of the Civil Procedure Rules seeking a temporary stay of execution of a judgment and order of the Rent Restriction Tribunal made on September 26, 2022. The tribunal had adopted a valuation report assessing the standard rent at Kshs 15,000/- per month with effect from November 1, 2022, and ordered the appellant to grant the respondent access to carry out repairs. The dispute originated from the respondent's notice to increase rent from Kshs 11,000/- to Kshs 13,000/- per month, which prompted the appellant to file Kisumu Rent Restriction Case No 32 of 2016 seeking restraint of the increase and assessment of standard rent. The respondent opposed the application, asserting the appellant had refused to pay the assessed rent and had come to court with unclean hands. The court identified two fatal defects. First, the memorandum of appeal challenged a decision purportedly made on March 30, 2022 in Case No 437 of 2019, whereas the stay targeted the September 26, 2022 order actually made in Case No 32 of 2016; there was therefore no competent appeal to support the stay. Secondly, even assuming a competent appeal, the appellant failed to demonstrate substantial loss, since the tribunal did not order eviction but only access for repairs and payment of assessed rent under a valuation report obtained on his own application. Relying on Kenya Shell Limited v Karuga, the court held substantial loss to be the cornerstone of the stay jurisdiction. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether a stay of execution could issue where the appeal as filed does not target the order sought to be stayed

Holding

No; the stay application had no foundation because the memorandum of appeal challenged a different decision (March 30, 2022 in Case No 437 of 2019) from the order sought to be stayed (September 26, 2022 in Case No 32 of 2016).

Reasoning

The court compared the memorandum of appeal with the order annexed to the supporting affidavit. The appeal was purportedly against a decision of March 30, 2022 in Case No 437 of 2019, while the stay sought targeted the September 26, 2022 order, which was actually made in Case No 32 of 2016. Since the appeal was not against the decision sought to be stayed, there was no competent appeal to found the application.

p. 3
02

Whether the appellant demonstrated substantial loss under Order 42 rule 6(2)

Holding

No; the tribunal's order only required payment of assessed rent and access for repairs, not eviction, so no substantial loss was shown.

Reasoning

Reading the tribunal's order, the appellant was not ordered to vacate the suit property; he was only to grant access for repairs and pay rent of Kshs 15,000/- per month from November 1, 2022 pursuant to a valuation report obtained on his own application. Without evidence of substantial loss, the discretionary stay jurisdiction could not be exercised in his favour even assuming a competent appeal existed.

p. 3

Legal principles established

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  • An application for stay of execution must be based on a competent appeal against the very decision sought to be stayed
  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution

Court orders

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  1. 1.The appellant's notice of motion application dated October 26, 2022 seeking stay of execution was dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 42 rule 6(2)

Cases cited (1)

  • Kenya Shell Limited v Karuga
    (1982 1988) I KAR 1018
On appeal from
Rent Restriction Tribunal, Kisumu
Kisumu Rent Restriction Case No 32 of 2016 (order of September 26, 2022)
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (stay of execution pending appeal from the Rent Restriction 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, "Obimbo v Ochieng (Environment and Land Appeal E037 of 2022) [2023] KEELC 731 (KLR)", Case Analysis (2023). Environment and Land Appeal E037 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/731/eng@2023-02-14

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