Jane Muringi Wangui & another v Homeplus Realtors Limited & another
The bottom line
#The High Court let two tenants stay in their Nairobi premises pending appeal, but made them pay their own costs for causing the application.
What this practically means
#Executive summary
#Key legal issues
#Whether the court was functus officio after its ruling of 21/09/2023 and thus lacked jurisdiction to entertain the application
The court was not functus officio because the earlier ruling dealt with stay and temporary injunction, not status quo; the question of status quo post the ruling had not been pronounced upon
The court distinguished the applications dated 29/06/2023 and 10/07/2023, which sought injunctive and stay orders, from the present application seeking status quo. Since the ruling of 21/09/2023 addressed only stay and temporary injunction, the issue of status quo remained open and the functus officio objection was unfounded.
Whether status quo should be maintained pending the appeal
Yes; the applicants are in possession of the suit premises and shall remain in possession until the appeal is heard and determined
Both sides agreed the applicants are in occupation. The respondents had instructed Pyramid Auctioneers by letter dated 12/10/2023 to evict the applicants, showing execution of the decree had begun. Preserving the applicants' possession maintains the substratum of the appeal and prevents it being rendered nugatory.
Who should pay costs of the application
Each party to bear its own costs, despite the applicants' success, because the application was occasioned by the applicants' own conduct
Under Section 27 of the Civil Procedure Act costs follow the event, but the discretion must be judiciously exercised. The court found the litigation burden and denial of the fruits of judgment to the respondents justified departing from the ordinary rule.
Legal principles established
#- A status quo order is an ancillary preservation order that does not depend on proof of a right or a prima facie case, unlike an injunction
- Status quo orders should be issued in land matters to preserve the subject matter of the dispute
- Costs follow the event but the discretion must be judiciously exercised
Court orders
#- 1.The appeal to be fast tracked and heard on priority basis within 45 days from the date of the ruling
- 2.Status quo be maintained to the extent that the applicants/appellants shall remain in possession of the suit premises until the appeal is heard and determined
- 3.Each party shall bear its own costs
- On appeal from
- Business Premises Rent Tribunal (BPRT)
- Jurisdiction invoked
- Article 50(1) of the Constitution; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Muringi Wangui & another v Homeplus Realtors Limited & another", Case Analysis (2024). Notice of Motion dated 23/10/2023 (arising from appeal filed 4/07/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3459/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.