Forward Mobiles Limited v Gatma Holdings Limited
The bottom line
#Kenya's Court of Appeal refused to stop a tenant's eviction, ruling that the planned appeal had no realistic chance of success.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was not arguable; section 2 of the Landlord and Tenant Act did not assist the applicant on jurisdiction given the lease's stipulated determination and notice of non-renewal.
The lease stipulated its own determination date and the respondent corresponded before and after expiry, including a letter of 3rd October 2007 stating it would not renew. The court therefore found the protected-tenancy/jurisdiction argument unpersuasive and declined to find the appeal arguable, making the nugatory inquiry unnecessary.
Nugatory-ness and irreparable loss
Even on the alternative assumption, the applicant failed to show irreparable harm or that damages could not compensate, or that its business could only operate from the premises.
The court considered whether the applicant would suffer irreparable loss if evicted pending appeal. It found no demonstration that any loss could not be compensated by damages, nor that the applicant's type of business could only be carried on from the respondent's premises, defeating the nugatory prong as well.
Legal principles established
#- An applicant for stay of execution pending appeal under rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that it would be rendered nugatory if the stay is not granted.
- Where an intended appeal is found not arguable, the nugatory-prong need not be determined; and the applicant must still show irreparable loss not compensable by damages.
- Orders on stay applications are fact-specific and an appellate court will not interfere absent misdirection in the exercise of the lower court's discretion.
Court orders
#- 1.Application for stay of execution dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- H.C.C.C. No. 563 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Forward Mobiles Limited v Gatma Holdings Limited", Case Analysis (2009). Civil Appeal (Application) 201 of 2009 (UR 138/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/92/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.