Chege v Osidai Limited (Environment and Land Appeal E011 of 2024) [2024] KEELC 1507 (KLR)

The Tribunal's ruling dismissed a preliminary objection among other matters. Where a preliminary issue alleging lack of jurisdiction fails, no appeal lies as of right; the unsuccessful party must obtain leave at delivery of the ruling or within 14 days. The Applicant did not seek or obtain leave, so that limb of the appeal is incompetent, meaning the Applicant could not establish sufficient cause, the critical pre-requisite to stay.

The Tribunal dismissed the preliminary objection and the Applicant's application, and vacated the ex-parte orders. Following Western College v Oranga and related authority, a dismissal order does not order any party to do or refrain from doing anything, and is thus incapable of execution save in respect of costs. Stay of execution of such orders is legally untenable.

Substantial loss is the cornerstone of stay of execution. The Applicant's claim of loss rested on having leased the premises to a third party, but the Respondent's dispossession flowed from an ex-parte order obtained illegally and since vacated. The Respondent as lawful tenant would pay rent during occupation, and the Landlord and Tenants Act protects tenants. Mere recital of statutory words without evidence is insufficient.

Stay of proceedings interrupts a party's right to conduct litigation towards trial and should not be granted unless the proceedings beyond all reasonable doubt ought not to continue. No cogent evidence of grave injustice or prejudice was placed before the court. If the appeal succeeds, the Tribunal proceedings would be invalidated and the court can make appropriate orders to atone for loss of time and expenses, so the appeal would not be rendered nugatory.