[2005] KEHC 1527 (KLR)
The court found that the appellants had demonstrated that eviction at this stage would render their appeal nugatory and cause irreparable harm, thus satisfying the requirement of substantial loss. The application for stay was made without delay, and the appellants expressed willingness to provide security. However,...
Source-derived case information.
- Citation
- [2005] KEHC 1527 (KLR)
- Parties
- Appellant: Elite Studios Limited; Appellant: Pana Ratilal Shah t/a Continental Outfitters; Respondent: Intercontinental Hotels Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 483 of 2005
- Procedural Posture
- Civil Appeal / Stay of Execution Application Pending Appeal
- Outcome
- Limited stay of execution granted for four months, subject to conditions.
- Legal Topics
- Stay of Execution, Tenancy Termination, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elite Studios Limited
Appellant
Pana Ratilal Shah t/a Continental Outfitters
Appellant
Intercontinental Hotels Limited
Respondent
Procedural Posture
Civil Appeal / Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the appellants have satisfied the conditions for grant of stay of execution pending appeal.
- 2 Whether substantial loss would result to the appellants if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the appellants had demonstrated that eviction at this stage would render their appeal nugatory and cause irreparable harm, thus satisfying the requirement of substantial loss. The application for stay was made without delay, and the appellants expressed willingness to provide security. However, the court also recognized the respondent's interest in not being kept waiting indefinitely. To balance these interests, the court granted a limited stay of execution for four months, during which the appeal must be prosecuted expeditiously, and ordered the appellants to continue paying rent in court. The respondent was given liberty to apply for additional security if necessary.
Court Disposition
Limited stay of execution granted for four months, subject to conditions.
Orders
- Stay of execution of the Tribunal's judgment granted for four months from the date of the ruling.
- The appellants shall file, serve, and prosecute the appeal within four months.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Appeal 483 of 2005
ELITE STUDIOS LIMITED ……………………....…. 1ST APPELLANT PANA RATILAL SHAH T/A CONTINENTAL OUTFITTERS ……………….…… 2ND APPELLANT VERSUS INTERCONTINENTAL HOTELS LIMITED …….…. RESPONDENT
RULING
In this application, made under Order 41 Rule 4 of the Civil Procedure Rules, the appellants/Applicants seek to stay the execution of the Judgment of the Business Premises Tribunal (hereinafter “the Tribunal”) in BPRT Case Nos. 128 and 201 of 2003 (consolidated) pending the hearing and determination of this appeal.
The Appellants are aggrieved by the decision of the Tribunal to uphold the termination of the Appellants’ tenancy with the Respondent, and have appealed to this Court. That appeal was indeed filed within the time allowed by law. At this time they seek stay of execution.
For the Applicants to succeed in this application they must demonstrate to the satisfaction of this Court that substantial loss will ensue if the Order is not granted; that they have filed this application without delay; and that they are willing and able to give such security as is ordered by the Court for the due performance of the decree. That is the plain reading of the Rule, and the onus is on the applicants to satisfy all the conditions through their deposition, and not through bold statements from the bar.
The Appellants have argued that they have been the Respondent’s tenants for over 20 years, and if evicted, would suffer substantial loss, and that their appeal would be rendered nugatory. On the other hand, the Respondent wants the premises for its own use. At this time, I cannot go into the merits of the case, but must attempt to protect and balance the interests of both parties. Clearly, if the Applicants are evicted at this time, their appeals would be rendered nugatory, and they would suffer irreparable harm. On the other hand, the Respondent should not be kept waiting indefinitely for the determination of this matter.
Accordingly, I will order a limited stay of execution for four months from this date, and direct that the Record of Appeal be filed, served and the appeal be heard within the next four months. Meanwhile, the Applicants shall continue paying rent in Court. The Respondent shall be at liberty to apply for additional security, if it so wishes. Those shall be the Orders of this Court.
Dated and delivered at Nairobi this 20th day of September, 2005.
ALNASHIR VISRAM
JUDGE