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ELCAllowedEnvironment and Land Appeal 6 of 2023· [2023] KEELC 16942 (KLR)

Milele Homes Limited v Mambomoto Homes Limited

Environment and Land Court
27 April 2023
LKLC Komingoi
1,839 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court paused enforcement of a landlord-tenant ruling because the tenant's appeal could become pointless if execution went ahead.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (LC Komingoi J) determined a Notice of Motion dated September 12, 2022 by Milele Homes Limited, the appellant, seeking stay of execution of orders issued on July 6, 2022 by the trial magistrate in CM ELC Case No E043 of 2022, Kajiado, and a stay of further proceedings in that suit pending appeal. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules and sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, supported by an affidavit of Evance Otieno, and opposed by a replying affidavit of Lucy Kamau, a director of the respondent. The dispute arose from a landlord-tenant relationship over premises on Kajiado/Kaputiei-North/1007, where unpaid rent led the appellant to levy distress; the trial court ordered unconditional release of the goods and fixtures. The appellant argued the trial court granted mandatory interlocutory orders without a hearing, that a pending contempt application constituted substantial loss, and offered security. The respondent contended no substantial loss was shown, that fear of contempt is not substantial loss, and that no exceptional circumstances justified staying proceedings. Applying Order 42 Rule 6(2) and the Butt vs Rent Restriction Tribunal principles, the court found the application filed without unreasonable delay, the appeal arguable and rendered nugatory absent a stay, and security offered. The court allowed the application, granting both stays conditioned on a deposit of Kshs 200,000 as security in a joint interest-earning account within 30 days, failing which the orders lapse, with costs of the application abiding the appeal.

Key legal issues

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01

Whether the threshold in Order 42 Rule 6(2) for stay of execution was met

Holding

The application was filed without unreasonable delay, an arguable appeal existed that would be rendered nugatory, and the appellant offered security; stay was granted on conditions.

Reasoning

The court found the application brought without unreasonable delay. The trial magistrate had ordered unconditional release of goods despite admitted rent arrears, making the appeal arguable and its outcome nugatory if executed. The appellant expressed willingness to furnish security, satisfying the Order 42 Rule 6(2) conditions, subject to a deposit of Kshs 200,000.

p. 4
02

Whether stay of proceedings in the subordinate court could issue

Holding

Stay of further proceedings in CM ELC Case No E043 of 2022 was granted pending the appeal.

Reasoning

The court exercised its discretion to stay further proceedings in the trial court pending determination of the appeal, as sought in the motion, conditioned on the deposit of security for costs.

p. 5

Legal principles established

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  • Stay of execution pending appeal requires substantial loss, absence of unreasonable delay and furnishing of security under Order 42 Rule 6(2)
  • A stay should be granted where necessary to prevent an appeal from being rendered nugatory

Court orders

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  1. 1.Stay of execution, implementation and/or enforcement of the Orders of July 6, 2022 pending hearing and determination of the Appeal
  2. 2.Stay of any further proceedings in CM ELC Case No E043 of 2022, Kajiado pending hearing and determination of the Appeal
  3. 3.Appellant to deposit Kshs 200,000/= as security for costs in a joint interest-earning account in the names of counsel for both parties within thirty (30) days, failing which the orders lapse
  4. 4.Costs of the application to abide the outcome of the Appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)

Cases cited (9)

  • Catherine Njeri Maranga vs Serah Chege & Another
    (2017) eKLR

    Stay of execution principles

  • Peter Kariuki Mburu & another vs Neema Shah
    (2021) eKLR

    Stay of proceedings discretion; cited ReGlobal Tours & Travel Ltd HCWC No 43 of 2000

  • Silversten vs Chesoni
    (2002) 1 KLR 867

    Substantial loss requirement

  • James Wangalwa & Another Vs Agnes Naliaka Cheseto
    (2012) eKLR

    Substantial loss in stay applications

  • Machira t/a Machira & Co Advocates vs East African Standard (No 2)
    (2002) KLR

    Execution as lawful process

  • Antoine Ndiaye vs African Virtual University
    (2015) eKLR

    Contempt threat not amounting to substantial loss

  • Elijah B Wamburi & 2 Others vs Joshua Wilson Muthioma & 6 others
    (2020) eKLR

    Security for due performance of decree

  • Kenya Wildlife Service vs James Mutembei
    (2019) eKLR

    Stay of proceedings as grave interference, granted sparingly

  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417

    Discretionary principles on stay of execution

On appeal from
Magistrates' Court at Kajiado
CM ELC Case No E043 of 2022
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act

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, "Milele Homes Limited v Mambomoto Homes Limited", Case Analysis (2023). Environment and Land Appeal 6 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16942/eng@2023-04-27

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