Yakub v Wesonga (Appeal E006 of 2024) [2024] KEELC 6811 (KLR)
The bottom line
#A Mombasa court paused enforcement of a rent tribunal ruling, letting a tenant appeal only after depositing Kshs. 647,384.50 into a joint escrow account.
What this practically means
#Executive summary
#Key legal issues
#Stay of execution pending appeal
Stay of execution of the BPRT ruling granted, conditioned on deposit of the decretal sum of Kshs. 647,384.50 into a joint interest-earning escrow account of both parties' advocates within 30 days
The court applied Order 42 Rule 6(2), finding the applicant would suffer substantial loss if the ruling were executed as his tools of trade were locked in the premises and the appeal would be rendered nugatory. The application, filed about 18 days after the ruling, was made without undue delay. Security was imposed by the court under its discretion, drawing on Aron C. Sharma and Gianfranco Manenthi on the purpose of security under Order 42.
Extension of time to file appeal out of time under Section 79G
Leave to file the appeal out of time granted; the Memorandum of Appeal annexed deemed admitted upon payment of filing fees, with the appeal to be filed within 15 days
Applying the Leo Sila Mutiso and Nicholas Kiptoo Korir Arap Salat principles, the court found the 18-day delay was not inordinate and was explained by non-availability of the copy of the ruling despite follow-ups with the registry. The intended appeal was considered arguable, and any prejudice to the respondent was compensable by an award of costs. Prayer (b) of the application was accordingly allowed.
Costs
Each party to bear their own costs of the application
The court noted that costs follow the event under Section 27(1) of the Civil Procedure Act, citing Jasbir Rai Singh and Cecilia Karuru Ngayo, but in the exercise of its discretion reserved from making an award, directing each party to bear their own costs.
Legal principles established
#- The three conditions for granting stay of execution pending appeal under Order 42 Rule 6 are conjunctive and must all be met simultaneously
- Delay of about 18 days in seeking to appeal out of time, with a satisfactory explanation, does not amount to inordinate delay
- Security for due performance of a decree may be ordered by the court on its own initiative even where the applicant made no provision for it
Court orders
#- 1.The Notice of Motion application dated 23rd May, 2024 be and is hereby found to have merit hence allowed in its entirety upon fulfilment of the Pre-Conditions set out
- 2.The Appellant to deposit Kshs. 647,384.50 in an interest earning Escrow bank account in the names of Messrs. Tindika & Company Advocates and Wangila & Wangila Company Advocates within 30 days from delivery of the ruling
- 3.The Memorandum of Appeal attached dated 23rd May, 2024 be admitted after payment of the requisite filing fees and the appeal be filed within 15 days from the date of the ruling
- 4.An order of stay of execution of the ruling delivered on 5th April 2024 in BPRT/E214/2022 pending the hearing and determination of the appeal
- 5.The Applicant to file and serve a Record of Appeal within 45 days from the date of the ruling, with mention on 11th December, 2024 for directions under Section 79B of the Civil Procedure Act and Order 42 Rules 11, 13 and 16
- 6.Judgment to be delivered on 19th February, 2025 if all facts remain constant
- 7.Failure to comply with any of the pre-conditions, the application shall automatically stand dismissed
- 8.Each party shall bear their own costs
- On appeal from
- Business Premises Rent Tribunal at Mombasa
- BPRT/E214/2022
- Jurisdiction invoked
- Sections 79G, 95 and 3A of the Civil Procedure Act; Orders 42 Rule 6, 50 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbekо v Sillas (Environment and Land Case E009 of 2024) [2026] KEELC 5369 (KLR)[2026] KEELC 5369 (KLR)30 Jul 2026
- Oduor v Meritei & 2 others (Civil Application E695 of 2025) [2026] KECA 845 (KLR)[2026] KECA 845 (KLR)30 Apr 2026
Cite this brief
#Cite this brief
Caselaw, "Yakub v Wesonga (Appeal E006 of 2024) [2024] KEELC 6811 (KLR)", Case Analysis (2024). BPRT E214 of 2022 (Appeal) - Ruling on Notice of Motion dated 23rd May, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6811/eng@2024-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.