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ELCDismissedNairobi Business Premises Rent Tribunal Case No. E280 of 2024 (Appeal)· [2024] KEELC 5167 (KLR)

Kamau & another v KMK kuria Investments Limited (Environment and Land Appeal E046 of 2024) [2024] KEELC 5167 (KLR)

High Court of Kenya
3 July 2024
JOJudy Omange
1,467 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to pause a Tribunal eviction because the landlord had already taken possession — appeal-time stay orders only work if sought before execution happens.

What this practically means

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Executive summary

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The appellants, tenants of shop No. 4 on L.R No. 209/136/186 along Kirinyaga Road, Nairobi since 2011, sought a stay of execution of a ruling of the Nairobi Business Premises Rent Tribunal in case number E280 of 2024 delivered on 25th March 2024, which had ordered their eviction for non-payment of rent and to allow renovations. They argued they had been paying rent, that the Tribunal ignored their res judicata objection, that they were never served with the notice to vacate, and that eviction would cause irreparable harm to their livelihood. They also sought to pay rent instead of the ordered security deposit, claiming inability to raise it after losing access to the premises. The respondent, through its director, countered that the appellants were served with a notice to vacate dated 29th November 2023, failed to file a reference, and that it had taken possession and commenced repairs; it argued the stay orders had lapsed for non-compliance with the security deposit direction. The respondent filed no submissions. Justice Judy Omange framed a single issue: whether the requirements of Order 42 Rule 6 were satisfied. Relying on Francis K. Chabari and Butt v Rent Restriction Tribunal on substantial loss, she found that both parties agreed the respondent had already taken possession and that the applicants were no longer in occupation. A stay after execution would be futile - like locking the door after the horse had bolted. The application was dismissed with costs to abide the outcome of the appeal. Judgment delivered on 3rd July 2024 via Microsoft Teams.

Key legal issues

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01

Substantial loss for stay of execution under Order 42 Rule 6

Holding

The applicant failed to show substantial loss warranting stay because the eviction order had already been executed and the applicants were no longer in possession

Reasoning

The court weighed the respondent's right to enjoy the fruits of its judgment against the applicants' right of appeal. On the parties' own accounts, the respondent had taken possession of the premises, and the applicants themselves attributed their inability to deposit security to having lost access. A stay after execution would achieve nothing and would render the court's orders meaningless.

p. 3

Legal principles established

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  • Stay of execution will not issue where the decree has already been executed; court orders should not be made in vain
  • Proof of substantial loss is the first hurdle for an applicant seeking stay of execution

Court orders

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  1. 1.Application for stay of execution of the Tribunal ruling of 25th March 2024 dismissed
  2. 2.Costs to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (4)

  • Victory Construction Vs BM (a minor suing through next friend one PMM)
    [2019] eKLR
  • Butt vs. Rent Restriction Tribunal
    [1979] eKLR
  • Francis K. Chabari & another vs Mwarania Gaichura Kairubi
    [2022] eKLR
  • Geofiery Muriungi & another v John Rukunga M'imonyoso
    null
On appeal from
Nairobi Business Premises Rent Tribunal
E280 of 2024
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (appellate stay jurisdiction)

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, "Kamau & another v KMK kuria Investments Limited (Environment and Land Appeal E046 of 2024) [2024] KEELC 5167 (KLR)", Case Analysis (2024). Nairobi Business Premises Rent Tribunal Case No. E280 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5167/eng@2024-07-03

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