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ELCAllowedEnvironment and Land Appeal E037 of 2023· [2023] KEELC 20479 (KLR)

Gam Holdings Limited v Benta Oloo Anyango

Environment and Land Court
2 October 2023
JOJudy Omange
1,706 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused execution of a rent tribunal order because the landlord showed it might never recover the money if its appeal succeeded.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nairobi (Omange J) on a Notice of Motion dated 17 November 2022 by Gam Holdings Limited, the appellant in an appeal against orders of the Business Premises Rent Tribunal (Andrew Muma, Vice Chairperson) in BPRT No E669 of 2022 delivered on 13 April 2023. The appellant sought stay of execution of the Tribunal's ruling and orders pending the interpartes hearing, determination of the application, and determination of the appeal, plus costs. The appellant, through its director Peter Kihiu, argued the respondent was not a tenant and not entitled to the damages awarded, and that execution would render the appeal nugatory; it offered to deposit the decretal amount as security. The respondent maintained she was a dutiful tenant whose goods were unlawfully attached, and offered to refund the decretal sum if the appeal succeeded, asking that any stay be conditional on deposit of Kshs 1,500,000. She also objected to the affidavits for lack of authorisation, an objection the court rejected, holding a director could competently swear them. Framing the issue as whether the Order 42 Rule 6 requirements were met, the court reviewed authorities on substantial loss and found the respondent had not disputed that her economic means were unknown and produced no valuation of her goods worth Kshs 1,500,000, validating the appellant's concern about non-recovery. Balancing the respondent's right to enjoy the fruits of judgment against the appellant's appeal, the court granted a stay of execution pending appeal, conditional on the appellant depositing Kshs 1,000,000 in court within 30 days and filing the Record of Appeal within 90 days, failing which the stay lapses. No costs order was made.

Key legal issues

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01

Whether a director can competently swear affidavits on behalf of a company applicant

Holding

A director well versed with the matter can competently swear affidavits on behalf of the company; the objection to the affidavits lacked merit.

Reasoning

Peter Kihiu deponed that he is a director of the Appellant and well versed with the matter. The court found that as a director he could competently swear the affidavits, so the Respondent's objection that there was no authorisation failed.

p. 2
02

Whether the Appellant demonstrated substantial loss to warrant stay of execution under Order 42 Rule 6

Holding

The Appellant demonstrated substantial loss: there was no evidence of the Respondent's economic means or any valuation of her goods, so the Appellant's concern about non-recovery of the decretal sum was valid.

Reasoning

The Respondent did not dispute that her economic means were unknown, and produced no valuation confirming her locked-in goods were worth Kshs 1,500,000. In the absence of evidence of her earnings, the court found the Appellant's concern that it could not recover the decretal amount if the appeal succeeded was valid, justifying a conditional stay.

Legal principles established

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  • Substantial loss is the cornerstone of an application for stay of execution pending appeal; it is the loss sought to be prevented by preserving the status quo.
  • The onus of proving substantial loss, including that the respondent cannot repay the decretal sum if the appeal succeeds, lies with the applicant.

Court orders

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  1. 1.Stay of execution of the ruling and orders of Honourable Andrew Muma vice chairperson delivered in Nairobi BPRT No E669 of 2022 pending hearing and determination of the appeal
  2. 2.The applicant to deposit Kshs 1,000,000 in court within 30 days
  3. 3.The Appellant to file the Record of Appeal within 90 days
  4. 4.In default of the deposit and filing of the Record of Appeal, the stay orders to lapse

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (6)

  • RWW v EKW
    Nairobi Civil Suit No 25 of 2012 (2019)

    Purpose of stay pending appeal is to preserve the subject matter so the appeal is not rendered nugatory.

  • Francis K. Chabari & another v Mwarania Gaichura Kairubi
    [2022] eKLR

    Quoted Geoffrey Muriungi v John Rukunga M'imonyoso defining substantial loss.

  • Geoffery Muriungi & another v John Rukunga M'imonyoso

    Definition of substantial loss as preventing a successful appellant from holding a barren result.

  • Silverstein v Chesoni
    [2002] 1 KLR 867

    Substantial loss is the cornerstone; it is prevented by preserving the status quo.

  • Shell Ltd v Kibiru & Another
    Civil Appeal No. 97 of 1986, Nairobi

    No substantial loss where applicant shows no difficulty paying damages or risk of non-refund.

  • Antoine Ndiaye v African Virtual University
    [2015] EKLR

    Onus of proving substantial loss and the respondent's inability to repay lies with the applicant.

On appeal from
Business Premises Rent Tribunal
BPRT No E669 of 2022
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, appellate jurisdiction over 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, "Gam Holdings Limited v Benta Oloo Anyango", Case Analysis (2023). Environment and Land Appeal E037 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20479/eng@2023-10-02

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