[2018] KEELC 1715 (KLR)
The court found that the application for stay of execution was made without unreasonable delay. However, the decree in question was monetary in nature, specifically a rent increment of about Kshs.100,000 per month. The applicant failed to demonstrate that it would suffer substantial loss if the stay was not granted,...
Source-derived case information.
- Citation
- [2018] KEELC 1715 (KLR)
- Parties
- Appellant: East African Seed Company Limited; Respondent: Kaushak M Shah & Another
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 14 of 2018
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Stay of Execution, Monetary Decree, Substantial Loss, Appeal Procedure, Landlord Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
East African Seed Company Limited
Appellant
Kaushak M Shah & Another
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution pending appeal.
- 2 Whether the applicant has demonstrated substantial loss that would result if stay is not granted.
- 3 Whether the application was brought without unreasonable delay.
Ratio Decidendi
The court found that the application for stay of execution was made without unreasonable delay. However, the decree in question was monetary in nature, specifically a rent increment of about Kshs.100,000 per month. The applicant failed to demonstrate that it would suffer substantial loss if the stay was not granted, as there was no evidence that the respondents would be unable to refund the increased rent or provide rebates should the appeal succeed. The court emphasized that demonstration of substantial loss is the cornerstone for the grant of stay pending appeal, and in the absence of such demonstration, especially in a monetary decree, the appeal would not be rendered nugatory....
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for stay of execution pending appeal is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC APPEAL NO.14 OF 2018
EAST AFRICAN SEED COMPANY LIMITED.................APPELLANT
=VERSUS=
KAUSHAK M SHAH & ANOTHER..............................RESPONDENTS
(An appeal from the Judgement and Order of the Honourable Mr Mbichi Mboroki Chairperson, Business Premises Rent Tribunal Case No.344 of 2015, dated 23rd February 2018).
RULING
1. The appellant /applicant filed a notice of motion dated 20th March 2018 in which it sought orders of stay of execution pending appeal. The applicant contends that it has preferred an appeal against the decision of Honourable Mbichi Mboroki Chair-Person Business Premises Rent Tribunal in Tribunal case No.344 of 2015 delivered on 23rd February 2018. The applicant further contends that if execution is carried out it will suffer substantial loss and that the appeal will be rendered nugatory.
2. The Respondents have opposed the application based on a replying affidavit of the first respondent sworn on 10th April 2018. The respondents contend that the application herein is an abuse of the process of the court; that the application was filed after they had initiated the process of execution and that the applicant will not suffer any substantial loss. Even if the appeal succeeds, the applicants are in a position to refund what they would have been paid or can give rebates in rent.
3. I have considered the applicant’s application as well as the opposition to the same by the respondents. The principles for grant of stay pending appeal are very clear. First the application must be brought without unreasonable delay. Second, there has to be demonstration of substantial loss and third, there has to be such security provided for the due performance of the decree as may ultimately be binding upon the applicant.
4. In the instant case, the decree appealed against was passed on 23rd February 2018. This application was made on 20th March 2018. There was therefore no unreasonable delay. This is a money decree. A money decree would not render an appeal nugatory. The rent increment was about Kshs.100,000/= on top of what the appellant was paying monthly. There is no evidence that if the increased rent was paid and the appeal succeeded, the respondents will not be in a position to pay.
5. The applicant is a tenant of the respondents. If the appeal succeeds, the respondents can give rebates in rent or even refund. There is no suggestion that the respondents will be unable to refund. Demonstration of substantial loss if the cornerstone for grant of stay pending appeal. In the absence of this and given that this is a monetary decree, I do not see how the appeal will be rendered nugatory. I therefore find no merit in the applicant’s application which is hereby dismissed with costs to the respondents.
It is so ordered.
Dated, Signed and delivered at Nairobi on this 18th day of September 2018.
E.O.OBAGA
JUDGE
In the presence of;-
M/s Motabori for Mr Mugalo for Respondent
Mr Ogutu for Mr Nduati for appellant
Court Assistant: Hilda
E.O.OBAGA
JUDGE