Andabwa & 24 others v Registered Trustees, Teleposta Pension Scheme & another (Appeal E46 of 2023) [2024] KEELC 1245 (KLR)
The bottom line
#Mombasa tenants won a stay pausing a rent increase and possible eviction, but only if they pay Kshs 15,000 monthly rent on time.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellants/Applicants satisfied the pre-conditions for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, 2010
The application satisfied the pre-conditions: it was filed without unreasonable delay, substantial loss (eviction) was demonstrated, and security could be fixed by the court; the application was allowed subject to conditions
The application and memorandum of appeal were filed on 30th June 2023, shortly after the 9th June 2023 ruling, satisfying the delay test. The court found the new tenancy agreements demanding acceptance within about a week 'draconian', showing the risk of eviction amounting to substantial loss. The appellants' offer of Kshs 12,500/= per month was rejected as insufficient security, and the court fixed Kshs 15,000/= per month as security, with default lapsing the stay.
Whether the appellants' offer to continue paying the old rent of Kshs 12,500/= constituted adequate security
No; the offer exclusively benefited the appellants and did not secure due performance of the tribunal's order; the court substituted Kshs 15,000/= per month as the security
Applying Mwaura Karuga and Focin Motorcycle, the court held security is measured by the ultimate decree payable if the appeal is lost, and it is for the court, not the applicant, to determine the security. If the appeal failed and the appellants had paid only Kshs 12,500/=, the respondents could not recover the shortfall; if the appeal succeeded, overpayments could be offset against future rent.
Costs of the application
Costs follow the event under Section 27(1), but since the matter is still proceeding, costs of the application were ordered to abide the outcome of the appeal
Though the applicant succeeded, the court held that because the appeal is still pending, the fair course was to make costs abide the outcome rather than award them to either party immediately.
Legal principles established
#- For a stay of execution pending appeal under Order 42 Rule 6, the applicant must show substantial loss, absence of unreasonable delay, and furnish security for due performance of the decree
- Security for stay is for the court to determine and must achieve due performance of the ultimate decree, not merely be what the applicant is willing to offer
- Security for costs ought to be seen as a debt already owed to the respondent, who is entitled to enjoy the fruits of judgment
Court orders
#- 1.That the Notice of Motion application dated 28th June, 2023 be and is hereby found to be meritorious and hence allowed subject to the fulfilment of the conditions set out
- 2.An order of stay of execution of the ruling made on 9th June 2023 by the Rent Restriction Tribunal at Mombasa in Rent Restriction Assessment Case No. 53 of 2015 until the appeal is heard and determined
- 3.The Appellants/Applicants to pay a monthly rent of Kenya Shillings Fifteen Thousand (Kshs 15,000/=) per month exclusive of service charge until the appeal is heard and determined
- 4.Any default in paying the monthly rent of Kshs 15,000/= on or before the 5th of every month will automatically lapse the order of stay of execution
- 5.Appellants/Applicants granted 30 days to compile, file and serve the Records of Appeal; mention on 14th May, 2024 for directions under Section 79B of the Civil Procedure Act and Orders 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010
- 6.Costs of the application to abide the outcome of the appeal
- On appeal from
- Rent Restriction Tribunal, Mombasa
- Rent Restriction Assessment Case No. 53 of 2015
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act, Cap. 21 and Order 42 Rule 6 and Order 43 Rule 6(1) and (4) of the Civil Procedure Rules, 2010 (appellatory jurisdiction over the Rent Restriction Tribunal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andabwa & 24 others v Registered Trustees, Teleposta Pension Scheme & another (Appeal E46 of 2023) [2024] KEELC 1245 (KLR)", Case Analysis (2024). Rent Restriction Appeal (Notice of Motion dated 28th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1245/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.