Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Appeal E010 of 2023· [2023] KEELC 21950 (KLR)

JBF Global Visions Limited & another v Hasmukh

Environment and Land Court at Bungoma
30 November 2023
ECE.C. Cherono
2,756 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause a rent judgment because the tenants never showed the landlord couldn't repay the money if their appeal succeeded.

What this practically means

#

Executive summary

#
The appellants, JBF Global Visions Limited and Canon Medical Hospital Limited, moved the Environment and Land Court at Bungoma by Notice of Motion dated 13th September 2023 seeking temporary and pending-appeal stay of execution of a ruling delivered on 17th August 2023 in Bungoma Magistrate's Court ELC Case No. E58 of 2023, in which their defence was struck out and summary judgment entered for the respondent, their landlord, for rent arrears and interest. The application was supported by the affidavit of Tabitha Vivienne Njeri Numa, who deponed that a non-suited party, John Billyu Kuria, had entered appearance and filed defence; that the hospital operates from the demised premises serving patients in critical condition; that eviction would damage reputation, cause massive losses and forfeit some Kshs. 32,000,000 invested in the premises; and that the appeal would be rendered nugatory. The respondent opposed, deposing to lease agreements from November 2020 and July 2021, unpaid rent from August 2022, a dishonoured cheque, and total indebtedness of about Kshs. 15,263,033.60, arguing the applicants were abusing court process to evade their obligations. The court, E.C. Cherono J, applied Order 42 Rule 6 of the Civil Procedure Rules. It found the application filed within 30 days was not inordinate delay, but held that substantial loss, the cornerstone of stay, was not established: the subject is a money decree capable of repayment and the applicants never swore the respondent could not repay. The application was dismissed with costs to the respondent and the interim stay orders of 15th September 2023 were vacated forthwith.

Key legal issues

#
01

Delay in filing the stay application

Holding

Filing the appeal and application within 30 days of the impugned ruling was not inordinate delay

Reasoning

The court considered the time needed to peruse pleadings, proceedings and the impugned order and to prepare the memorandum of appeal, and found 30 days reasonable, satisfying the first condition under Order 42 Rule 6.

p. 5
02

Substantial loss

Holding

The applicants failed to establish substantial loss because the decree is a money decree capable of repayment and they did not depose that the respondent could not repay

Reasoning

Applying Kenya Shell Limited v Kibiru, the court held that where the subject is a money decree, refusal of stay does not render an appeal nugatory if the decree holder can repay. The applicants' claims of hospital disruption, reputational damage and sunk investment did not displace this, as they never swore that the respondent could not refund the decretal sum.

p. 5

Legal principles established

#
  • Substantial loss is the cornerstone consideration in the exercise of discretion whether to grant or not grant stay pending appeal
  • Without a demonstration of substantial loss, it would be rare that any other event would render the appeal nugatory

Court orders

#
  1. 1.The Notice of Motion dated 13th September 2023 is dismissed
  2. 2.The temporary stay orders issued on 15/9/2023 are vacated forthwith
  3. 3.Costs of the application to the respondent

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (2)

  • Kenya Shell Limited v Kibiru & Another
    (1986) eKLR 410

    Principles on substantial loss and whether refusal of stay would render the appeal nugatory

  • Japheth Nkubitu & Another v Regina Thirindi
    (1998) KLR
On appeal from
Bungoma Magistrate's Court
ELC Case No. E58 of 2023
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "JBF Global Visions Limited & another v Hasmukh", Case Analysis (2023). Environment and Land Appeal E010 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21950/eng@2023-11-30

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