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ELCDismissedEldoret BPRT Appeal arising from Eldoret BPRT Case No. E027 of 2023 (application dated 25/11/2023, filed 27/11/2023)· [2024] KEELC 1307 (KLR)

Mburu v Kariuki (Environment and Land Appeal E012 of 2023) [2024] KEELC 1307 (KLR)

Environment and Land Court
13 March 2024
FNFRED NYAGAKA
4,348 words in judgment
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The bottom line

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A Kenyan tenant lost his bid to block eviction during his appeal because he hadn't paid court-ordered rent arrears or proved he'd suffer real harm.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Nyagaka J) on an application dated 25/11/2023 in an appeal from the Business Premises Rent Tribunal, Eldoret, Case No. E027 of 2023. The appellant, a tenant, sought stay of execution and an order restraining the landlord from evicting, harassing or levying distress against him pending appeal, citing Article 159 of the Constitution, the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Tribunal had, on 27/10/2023, dismissed the reference and the termination notice as defective, directed a fresh termination notice under Section 4(2) of Chapter 301, and held the tenant liable for rent arrears, with liberty to levy distress. The landlord opposed, deposing that the premises were locked on 28/08/2023 in execution of the Tribunal's earlier order of 20/07/2023 directing payment of arrears of about Kshs 500,000 within 30 days, which the appellant had not obeyed, and that the appellant had sublet the premises in breach of the lease. The Deputy Registrar confirmed the premises were padlocked. The Court framed two issues: whether the conditions for stay were met, and costs. It held the application timeous but found no substantial loss: the appellant offered no evidence of absence of arrears, and the landlord was executing the unappealed orders of 20/07/2023 rather than the ruling of 27/10/2023. The Court found the application an abuse of process, noted the appellant had not challenged the leave to issue a fresh termination notice, and dismissed the application with costs to the respondent. It also gave the appellant seven days to comply with Order 42 Rule 2 and directed the appeal to be placed before the judge on 19/03/2024 under Order 42 Rule 11.

Key legal issues

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01

Whether the conditions for stay of execution pending appeal under Order 42 Rule 6(2) were met

Holding

The application was dismissed. The Court found no substantial loss established: the Appellant claimed he owed no rent but adduced no evidence, and the Tribunal had on 25/07/2023 ordered payment of rent arrears which remained unpaid. The Respondent was executing the earlier orders of 20/07/2023, not the ruling of 27/10/2023, so there was no breach of the 30-day stay. The application was a misuse of court process and an attempt to go around the Tribunal's orders.

Reasoning

The Court set out the four conditions for stay (substantial loss, security, no unreasonable delay, sufficient cause) and applied them. Although the application was timeously filed, the Appellant failed to demonstrate substantial loss, having offered no proof of lack of arrears. Annextures SKK-03 and SKK-04 showed a lawful distress order of 25/07/2023 which had never been obeyed. The Court declined to consider security since substantial loss had failed, and found the unchallenged leave to issue a fresh termination notice rendered the application futile.

p. 7
02

Delay in bringing the application

Holding

The application was found to have been brought timeously.

Reasoning

The Court noted the application appeared prepared on 25/10/2023 and was filed on the date the 30-day stay granted on 27/10/2023 was to expire, and held it timeously filed. However, it criticised the Appellant for waiting until the last day of the stay period to move the Court, calling it a gimmick by parties without a good case.

p. 6

Legal principles established

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  • The filing of an appeal does not guarantee stay of execution; the conditions under Order 42 Rule 6(2) must be met.
  • Substantial loss means more than the ordinary loss every judgment debtor suffers on losing a case.
  • A tenant who holds himself out as a tenant must comply with orders to pay rent arrears, failing which the landlord is justified in levying distress, and rent continues to accrue whether the premises are locked or operational.

Court orders

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  1. 1.Application dated 25/11/2023 dismissed with costs to the Respondent
  2. 2.Appellant given seven (7) days to comply with Order 42 Rule 2 of the Civil Procedure Rules
  3. 3.Appeal placed before the judge on 19/03/2024 for consideration under Order 42 Rule 11
  4. 4.Appeal may be mentioned on 10/04/2024 to confirm compliance with Order 42 Rule 12
On appeal from
Business Premises Rent Tribunal (Eldoret)
E027 of 2023
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010; Article 159 of the Constitution; Sections 1A, 1B, 3, 3A and 63(c) & (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, "Mburu v Kariuki (Environment and Land Appeal E012 of 2023) [2024] KEELC 1307 (KLR)", Case Analysis (2024). Eldoret BPRT Appeal arising from Eldoret BPRT Case No. E027 of 2023 (application dated 25/11/2023, filed 27/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1307/eng@2024-03-13

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