Kosgey & Mesese Advocates v Board Of Trustees National Social Security Fund (Landlord) & another [2020] KEELC 2662 (KLR)
The bottom line
#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 was filed without unreasonable delay
- 2.Whether the applicant will suffer substantial loss if stay/injunction is not granted
- 3.Whether the appeal would be rendered nugatory absent the orders
- 4.Whether security for the due performance of the decree has been offered
Key legal issues
#Unreasonable delay in bringing the application
The application filed on 19th February 2016, seven days after the tribunal's ruling of 12th February 2016, was made without unreasonable delay.
The court noted the tribunal chairman delivered the ruling against the applicant on 12th February 2016, and the application together with a memorandum of appeal was filed on 19th February 2016. The short interval satisfied the delay requirement under Order 42 rule 6(2)(a).
Substantial loss / irreparable harm
The applicant, a law firm of reputable standing, demonstrated it would suffer irreparable harm not compensable in damages, as its reputation would be injured by distress for rent.
The applicant stood to suffer financial loss from loss of clientele due to possible eviction. Being a reputable law firm, its reputation would be injured if distress were conducted, which the court found constituted irreparable harm not compensable in damages, satisfying the substantial loss limb of Order 42 rule 6(2).
Appeal rendered nugatory
The appeal would be rendered nugatory if the orders were not granted, since the respondents would be free to conduct distress for rent against the applicant.
Applying the nugatory principle from the Ishmael Kagunyi Thande line of Court of Appeal authority, the court held that absent an injunction the respondents would be at liberty to distress for rent, thereby rendering the success of the intended appeal nugatory.
Temporary injunction under Order 42 rule 6
The High Court, in exercise of its appellate jurisdiction, granted a temporary injunction conditional on the applicant depositing Kshs.800,000/- as security.
Relying on sub-rule 6 of Order 42 rule 6, the court found the procedure for instituting the appeal from the tribunal had been complied with and all conditions under rule 6(2) were met. It issued the injunction but conditioned it on a deposit of Kshs.800,000/- as part of service charge owing, failing which the injunction stands discharged.
Legal principles established
#- The test for stay pending appeal ought to be the same for all courts - filing without unreasonable delay, substantial loss, and an offer of security.
- An applicant under Order 42 rule 6 need not show the appeal is arguable; the considerations are delay, substantial loss and security.
Court orders
#- 1.An order of injunction restraining the 1st and 2nd respondents, their servants and/or agents or anybody claiming under them from conducting distress for rent, evicting, harassing, altering the tenancy terms or in any way interfering with the applicant's quiet occupation and/or enjoyment of its office premises situated on the 19th floor, Hazina Towers, Monrovia Street/Utalii Lane Nairobi pending the hearing and determination of the appeal
- 2.Condition that the applicant deposit Kshs.800,000/- being part of the service charge owing in court within ninety (90) days from the date of the ruling, in default of which the order of injunction shall stand discharged
- 3.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Business Premises Rent Tribunal
- Reference dated 2nd June 2015
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules 2010, exercised in the High Court's appellate jurisdiction over a subordinate tribunal
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.
That an order of injunction is hereby issued restraining the 1st and 2nd respondents by themselves, their servants and/or agents or anybody claiming under them from conduction distress for rent, evicting, harassing, altering the tenancy terms or in any way interfering with the applicant's quiet occupation and/or enjoyment of its office premises situated on the 19 th floor, Hazina towers, Monrovia street/Utalii land Nairobi pending the hearing and determination of the appeal
That costs of this application do abide the outcome of the appeal.
It is my considered view that the test for stay pending appeal ought to be the same for all courts
For an applicant to succeed he must not only show his appeal or intended appeal is arguable but also that unless the court grants him an injunction or stay as the case may be, the success of the appeal will be rendered nugatory
Issues in the judgment
#The judgment does not state the names of the 1st and 2nd respondents or the applicant's full name; parties are identified only by role and by deponents' names.
The case number of the matter before the High Court is not stated in the judgment text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kosgey & Mesese Advocates v Board Of Trustees National Social Security Fund (Landlord) & another [2020] KEELC 2662 (KLR)", Case Analysis (2020). Notice of motion dated 22nd February 2016 ( memorandum of appeal filed 19th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2662/eng@2020-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.