Burger Chef Limited v Apa Insurance Limited (Land Case Appeal E076 of 2024) [2025] KEELC 7150 (KLR)
The bottom line
#The High Court dismissed Burger Chef's bid to pause a rent decree, ruling that money judgments can always be repaid, so appeals aren't harmed by execution.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of execution pending appeal was brought without unreasonable delay
- 2.Whether the applicant demonstrated substantial loss
- 3.Whether security for the due performance of the decree had been provided
Key legal issues
#Whether the conditions for stay of execution pending appeal were satisfied
The application was timely but failed on substantial loss; a monetary decree cannot render an appeal nugatory and the respondent undertook to credit any overpaid rent if the appeal succeeds
The court applied the three-pronged test for stay: timeliness, substantial loss, and security. It found no unreasonable delay since the application was filed within about a month of the decree. However, it held that the decree was monetary in nature and that the respondent, having undertaken to credit rent overpayments, could give rebates or refunds if the appeal succeeded, so the appeal would not be rendered nugatory.
Legal principles established
#- The principles for grant of stay pending appeal are: absence of unreasonable delay, demonstration of substantial loss, and provision of security for due performance of the decree
- A money decree would not render an appeal nugatory
- Demonstration of substantial loss is the cornerstone for grant of stay pending appeal
Court orders
#- 1.The Notice of Motion dated 6/06/2024 seeking stay of execution pending appeal is dismissed
- 2.Costs of the application to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal
- E 953 of 2022
- Jurisdiction invoked
- Appellate/supervisory jurisdiction over the Business Premises Rent Tribunal; specific provision not cited in the judgment
Relief refused
#Stay of execution of the Tribunal judgment dated 9/05/2024 pending appeal
No substantial loss demonstrated; the decree is monetary and the appeal would not be rendered nugatory since the respondent can rebate or refund rent if the appeal succeeds
Costs
Dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore find no merit in the Applicant’s application which is hereby dismissed with costs to the Respondent. It is so ordered.
Demonstration of substantial loss is the cornerstone for grant of stay pending appeal.
This is a money decree. A money decree would not render an appeal nugatory.
Issues in the judgment
#The heading/case number of this appeal and the specific court are not stated; the judgment opens directly with the application and identifies only the Tribunal case as E 953 of 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Burger Chef Limited v Apa Insurance Limited (Land Case Appeal E076 of 2024) [2025] KEELC 7150 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Business Premises Rent Tribunal E 953 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7150/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.