Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedBusiness Premises Rent Tribunal Appeal (BPRT Appeal No. E244 of 2023 appeal) - Kwale ELC

Degisat Services Limited v Hirani (Environment and Land Appeal E011 of 2024) [2025] KEELC 3256 (KLR)

Environment and Land Court of Kenya
2 April 2025
5,838 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court let a tenant appeal a rent tribunal decision late, and stopped the landlord from attaching property while the appeal proceeds.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kwale (L.L Naikuni, J) determined two applications by Degisat Services Limited, the Appellant, against its landlord Mavji Karsan Hirani. The first, a Chamber Summons dated 16th August 2024, sought leave to appeal out of time against a ruling of Hon. Cyprian Mugambi, Chairperson of the Business Premises Rent Tribunal, delivered on 12th March 2024 in BPRT Case No E244 of 2023. The second, a Notice of Motion dated 20th August 2024, sought restraining and stay orders against a threatened proclamation and distress over the Applicant's motor vehicle and other items. The Respondent opposed both applications through grounds of opposition and a replying affidavit, arguing the delay was unexplained, that a parallel tribunal application was pending, and that damages would suffice. The court framed four issues: extension of time, stay of tribunal proceedings, the injunction threshold, and costs. Applying the Salat principles and Section 79G, it found the Applicant had made diligent efforts to obtain the ruling, which was only uploaded four months after delivery, and granted leave to appeal out of time, to be filed and served within 30 days. Applying Section 6 of the Civil Procedure Act and stay-of-proceedings authorities, it stayed the BPRT proceedings to avoid parallel litigation. Applying Giella, Mrao and Nguruman, it found a prima facie case, irreparable harm (the vehicle being still registered to Platinum Credit Limited) and balance of convenience favouring the Applicant, and granted a temporary injunction plus a stay of execution of any proclamation. Both applications were allowed, a mention set for 26th June 2025, and each party ordered to bear its own costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should exercise its discretion to grant the Applicant leave to file his appeal out of time
  2. 2.Whether the proceedings before the BPRT ought to be stayed pending the hearing and determination of the appeal
  3. 3.Whether the Applicant satisfied the principles to be granted orders of temporary injunction
  4. 4.Who to bear the costs of the Applications and what orders to issue

Key legal issues

#
01

Extension of time to file an appeal under Section 79G of the Civil Procedure Act

Holding

Extension of time granted because the delay was attributable to the late upload of the ruling, not the Applicant.

Reasoning

The court applied the Salat principles: extension is equitable and discretionary, requiring explanation of delay and absence of prejudice. The Applicant showed numerous requests for the ruling, which was only uploaded four months after delivery, exceeding the 30-day window under Section 79G. The tribunal's delay could not be visited on the Applicant, who was found diligent.

p. 7
02

Stay of proceedings pending appeal

Holding

Stay of BPRT proceedings granted to avoid parallel proceedings.

Reasoning

Relying on Section 6 of the Civil Procedure Act and authorities including Kenya Wildlife Service v Mutembei, the court noted the stringent test for stay of proceedings. It found that allowing the tribunal case to continue alongside the appeal would waste judicial resources and constitute an abuse of process, and that sufficient reason for the stay had been demonstrated.

p. 8
03

Temporary injunction - prima facie case, irreparable harm, balance of convenience

Holding

All three Giella conditions satisfied; temporary injunction and stay of execution granted.

Reasoning

The Applicant faced proclamation over a motor vehicle still registered in the financier's name (Platinum Credit Limited); its attachment and possible disposal would cause irreparable harm not compensable in damages. The applicant was apprehensive of impending execution, establishing a prima facie case, and the balance of convenience favoured maintaining the status quo.

04

Costs

Holding

Each party to bear its own costs notwithstanding success.

Reasoning

Although Section 27(1) of the Civil Procedure Act provides that costs follow the event, the court exercised its discretion to depart from that default on the facts and circumstances of the pleadings, ordering each party to bear its own costs of the two applications.

p. 11

Legal principles established

#
  • An appeal out of time may be admitted where the appellant shows good and sufficient cause for the delay, and diligent efforts to obtain a copy of the ruling constitute such cause.
  • Stay of proceedings is a grave judicial action granted only in special circumstances; parallel proceedings over the same subject matter amount to an abuse of process warranting a stay.

Court orders

#
  1. 1.The Chamber Summons dated 16th August 2024 and Notice of Motion dated 20th August 2024 allowed
  2. 2.Leave granted to the Applicant to appeal out of time against the ruling of 12th March 2024; the intended appeal to be filed and served within 30 days from the date of the ruling
  3. 3.Stay of proceedings in BPRT Cause No E244 of 2023 pending the hearing and determination of the appeal
  4. 4.Temporary injunction restraining the Landlord/Respondent, Makini Auctioneers agencies, agents, any other auctioneers, assignees, servants from any proclamation, attaching items, carting away items from the suit premises, advertising or in any way executing the purported proclamation notice pending hearing and determination of the appeal
  5. 5.Stay of execution of any proclamation as instructed by the Respondent/Landlord pending the hearing and determination of the appeal
  6. 6.Mention on 26th June 2025 for admission of the appeal and directions under Section 79B of the Civil Procedure Act and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules
  7. 7.Each party to bear its own costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Business Premises Rent Tribunal
BPRT Case No E244 of 2023
Jurisdiction invoked
Sections 3A, 75, 79G of the Civil Procedure Act, Cap. 21 and Order 42 of the Civil Procedure Rules, 2010 (appellate jurisdiction over the Business Premises Rent Tribunal)

Relief refused

#

Permanent restraining order against the Respondent and auctioneers

The court granted only temporary/interlocutory restraint pending the appeal; no permanent injunction was issued.

p. 11

Costs of the applications in favour of the Applicant

The court declined to award costs despite the Applicant's success.

p. 11

Costs

Each party to bear its own costs.

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.

Ultimately, upon causing an in-depth analysis to the framed issues herein, the Honourable Court based on the Principles of preponderance of probabilities and the balance of convenience proceeds to make the following orders
p. 11disposition
That the intended appeal be filed and served within 30 days from the date of this ruling.
extension of time
There be a stay of proceedings in the BPRT in cause no E244 of 2023 is hereby issued pending the hearing and determination of the appeal.
p. 11stay of proceedings
That an order for temporary injunction be and is hereby issued restraining the Landlord/ Respondent, Makini Auctioneers agencies, agents, any other auctioneers, assignees, servants from any proclamation, attaching items, carting away items from the suit premises advertising or in any way executing the purported proclamation notice pending hearing and determination of the appeal.
p. 11temporary injunction
That there be an order of stay of execution of any proclamation as instructed by the Respondent/Landlord pending the hearing and determination of the appeal.
p. 12stay of execution
That each party to bear its own costs.
p. 12costs
The same will be akin to having parallel proceedings ongoing in two separate courts over the same subject and a clear abuse of the court process.
p. 7abuse of process

Issues in the judgment

#
minor

Conflicting dates for the Respondent's grounds of opposition - paragraph 8 refers to 'grounds of opposition dated 30th January 2025' while the opening paragraph says the Respondent filed a Replying Afidavit dated 30th August 2024 opposing both applications.

minor

The court framed four issues (paragraph 23) but labels the injunction issue as 'ISSUE No. b)' while paragraph 28 discusses stay of proceedings under issue (a) and the injunction is later headed 'ISSUE No. b)', leaving costs labelled 'ISSUE d)' without an explicit issue (c) heading.

minor

The judgment alternately describes the vehicle as the Appellant's motor vehicle and as still registered in the financier's name.

minor

The case number of the appeal before the High Court/ELC is not stated on the face of the ruling; only the tribunal cause number BPRT E244 of 2023 appears.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Degisat Services Limited v Hirani (Environment and Land Appeal E011 of 2024) [2025] KEELC 3256 (KLR)", Case Analysis (2025). Business Premises Rent Tribunal Appeal (BPRT Appeal No. E244 of 2023 appeal) - Kwale ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3256/eng@2025-04-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.