Lulu East Africa Limited v National Social Security Fund & 3 others (Civil Appeal (Application) 212 of 2018) [2024] KECA 16 (KLR)
The bottom line
#The Court of Appeal refused to halt action on Nairobi premises, ruling that a stay application must flow directly from the judgment being appealed.
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 applicant has an arguable appeal
- 2.Whether the appeal, if successful, would be rendered nugatory absent the stay/restraining orders sought
Key legal issues
#Whether the appeal is arguable (first limb of rule 5(2)(b))
The court was doubtful that the applicant raised arguable grounds, as none emerged from the ELC ruling; the tender advertised in 2023 was not before the ELC
The application was premised on a tender advertised on 26th April 2023, five years after the ELC judgment. The tender was not the subject of the hearing in the ELC. The applicant never applied to stay the ELC decision, was subsequently evicted, and its challenge to the tender before the Public Procurement Administrative Review Board was dismissed. Arguable grounds must therefore relate to the ruling under appeal.
Whether the appeal would be rendered nugatory absent stay (second limb)
The appeal would not be rendered nugatory; the grounds relate to the jurisdiction of the Business Premises Rent Tribunal, questions that can still be heard and determined by the Court
All the grounds in the memorandum of appeal concern the jurisdiction of the Business Premises Rent Tribunal and related questions that remain justiciable before the Court hearing the appeal. Since the tender advertised in April 2023 has nothing to do with the pending appeal, refusal of the restraining orders cannot render the appeal nugatory. The second limb was accordingly not satisfied.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the appeal (or intended appeal) is arguable and that it would be rendered nugatory if execution is not stayed; failure on either limb defeats the application
- Grounds of appeal must be connected to the decision appealed from; matters arising from subsequent events unrelated to that decision cannot support a stay under rule 5(2)(b)
Court orders
#- 1.Dismissal of the Notice of Motion dated 6th July 2023
- 2.Costs of the application to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Nairobi
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)
Relief refused
#Order restraining the 1st respondent from leasing, disposing of or interfering with the business premises LR No 209/11331, 11412 and 12220 pending hearing of the application and of the appeal
The tender for management services was not the subject of the ELC hearing, was floated five years after the judgment, the applicant never sought stay of the ELC judgment, and the appeal grounds relate to issues that can still be heard and determined
Costs
Application dismissed with costs to the 1st 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.
To be successful, an applicant must first show that the intended appeal, or appeal (if any) is arguable, and not merely frivolous. Secondly, the applicant must show that the appeal, or the intended appeal, if successful, would be rendered nugatory, if execution or further proceedings arising from a judgment, decree or order are not stayed.
we are doubtful that the applicant has raised any arguable grounds in this application which in any event, do not emerge from the ruling of ELC
Accordingly, we find that this application has no merit and we dismiss it with costs to the 1st respondent.
Issues in the judgment
#The judgment states the applicant was evicted on two different dates in different passages
The car park contracts are stated to have been signed in 2013 and 2015 inconsistently in the background narration
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lulu East Africa Limited v National Social Security Fund & 3 others (Civil Appeal (Application) 212 of 2018) [2024] KECA 16 (KLR)", Case Analysis (2024). Notice of Motion dated 6th July 2023 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/16/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.