[2022] KEHC 15322 (KLR)

Edward Engasha Sabatia C.E.O t/a Gillan Sabatia Foundation v Kabiru (Civil Appeal 101 of 2022) [2022] KEHC 15322 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15322 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 101 of 2022

HK Chemitei, J

November 3, 2022

Between

Edward Engasha Sabatia C.E.O t/a Gillan Sabatia Foundation

Applicant

and

Susan Wagonyo Kabiru

Respondent

Ruling

1. In its notice of motion dated August 5, 2022 the applicant pray for orders that there be stay of execution in Nakuru BPRT No E 027 of 2021 pending the hearing and determination of the main appeal.

2. The application is based on the grounds thereof and the affidavit of the applicant herein sworn on the same date. he deposed that the honorable chairman of the BPRT Tribunal ordered that he pays rent from September 21, 2021 to August 30, 2022. That the said orders did not form part of the respondent’s prayers.

3. He deposed further that the tribunal did not take into consideration that the respondent was not his landlady. Additionally, that the tribunal failed to address the issue of his preliminary objection dated November 1, 2021 and affidavit sworn on the March 25, 2022. According to him it was in the interest of Justice that he be granted the orders sought by this honorable court, pending the hearing and determination of this appeal. That the respondent will not be prejudiced if the orders sought are granted and that he stands to suffer irreparable loss and damages if the orders are not granted.

4. The respondent through her replying affidavit sworn on September 3, 2022 has vehemently opposed the application. She deposed that Nakuru Municipality Block 2/134 was legally registered in the name of Amosamu Builders and Developers Limited. That the shareholders of the said company were her late father, Amos Kabiru Kimemia and another. Further, that she was requested by the family to manage the property on their behalf and they therefore entered into an agency agreement with capital care homes to manage the property on behalf of the aforementioned company.

5. She deposed further, that the applicant herein rented one of the shops on the property for one year with effect from December 2020 to December 2021 at a monthly rent of Kenya shillings 15,000/-payable in advance. That however, the applicant defaulted on the payment of the monthly rent and she instituted a cause of action against the appellant at the business premises rent tribunal to recover the outstanding rent.

6. That vide an order dated September 28th, 2021 the appellant was ordered to pay 3 months’ rent without prejudice at the sum of kshs 15,000 per month. Further, that the appellant failed and or refused to comply with the court order and instead filed a preliminary objection dated November 1st, 2021.

7. The respondent went on to depose that their advocates on record made an oral application to amend the Notice from her name to the name of Amosamu Builders and Developers Limited, the legal registered owner of the Premises. That the Business Premises Rent Tribunal granted the order as prayed.

8. The respondent deposed also that the appellant was requesting for stay of execution of the court orders issued by the Business Premises Rent Tribunal under the Civil Procedure Rules, but he had not established that he would suffer substantial loss by being required to pay outstanding rent. That the appellant had not offered any security for the stay of execution that he requests for. Further, that it was unfair or prejudicial to her and a miscarriage of justice for the appellant to continue in occupation of the property while he is not paying any rent. It is the respondent belief that the appellant was grossly abusing the court process in bid to avoid his contractual obligations.

9. When the matter came up for hearing the court directed that the same be determined by way of written submissions which all parties have complied.

10. The applicant in his submissions submitted that the tribunal orders in Nakuru BPRT No E027 of 2021 was contrary to the rules of natural justice. He urged the court to allow his application with costs pending the hearing of his appeal.

11. The respondent on her part submitted that the applicant had not established that he would suffer substantial loss if he is required to pay the outstanding rental arrears and to vacate the premises. She relied on order 42 rule 6 and order 22 of the Civil Procedure rulesfor stay of execution.

12. In addition, she placed reliance on the case ofJames Wangalwa &another v Agnes Naliaka Cheseto [2012] eKLR. The respondent also while placing reliance on the case of RWW v EKW [2019] eKLR submitted that the appellant’s rights in this case ought to be balanced with hers as she continues to suffer because he had not paid rent in excess of one year. Additionally, the respondent submitted that the appellant had not offered any security for costs and thus the present appeal was an attempt to deny her the fruits of her judgement. She placed reliance on the case of Absalom Dova v Tarbo Transporters [2013] eKLR.

Analysis and Determination 12. I have considered the pleadings and submissions by the applicants and in my view the issue arising for determination is whether this court should grant stay of execution of the orders issued in Nakuru BPRT No E 027 of 2021 pending hearing and determination of the appeal herein.

13. This court’s jurisdiction to grant stay of execution pending appeal is guided by order 42 rule 6 of the Civil Procedure Ruleswhich provides that:“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)The court is satisfied that substantial loss may result to the applicant unless the order is made, and that the application has been made without unreasonable delay; and(b)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

14. In Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR the Court of Appeal held that: -“In determining the application the learned Judge, in our view correctly set out the three conditions to be considered before an order of stay pending appeal under order 42 rule (6) (2) can granted, namely, the applicant had the onus to demonstrate that substantial loss may result to it in the absence of an order of stay; that it has brought the application for stay without undue delay; and that it has given such security as the court may order for the due performance of such decree or order.”

15. In view of the above, it is clear that the facts to be considered before granting an application for stay of execution pending appeal entails that; the applicant must demonstrate substantial loss, the application has been made without unreasonable delay and the provision of such security as the court may impose.

16. In determining the present application, I note that the appeal herein has been filed within reasonable time that is within 30 days from the date when the orders were issued as stipulated in the law. On the condition that the applicant must demonstrate substantial loss, Platt Ag JA (as he then was) stated in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, substantial loss is the corner stone of the jurisdiction to grant stay of execution pending appeal. It is virtually impossible for such an application to succeed if an applicant fails to demonstrate that he will suffer substantial loss if stay is not granted.

17. The orders issued herein among others by the Business Premises Rent Tribunal in Nakuru BPRT No E027of 2021 is that the applicant pay rent from September 21, 2021 to the date on or before August 30, 2022 in default the landlord was at liberty to break in and take vacant possession. The applicant does not dispute being a tenant in the premises which is the subject of the said orders and has also not given a reason why he has not paid rent as was required of him as a tenant. Further, the applicant did not adduce any evidence or set out factual circumstances to demonstrate that he would suffer substantial loss in the event stay is not granted.

18. In Samvir Trustee Limited v Guardian Bank Limited [2007] eKLR the court held that: -“For the applicant to obtain a stay of execution, it must satisfy the court that substantial loss would result if no stay is granted. It is not enough to merely put forward mere assertions of substantial loss, there must be empirical or documentary evidence to support such contention. It means the court will not consider assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and proper evidence of substantial loss.”

19. In view of the above reasoning it is apparent that the respondent on the contrary would suffer loss should the applicant’s prayers are granted. The applicant despite being granted opportunity by the tribunal to pay the three months’ rent arrears failed to comply. The landlord must receive rent considering the contractual agreement with the applicant.

20. I think this is a case where the applicant simply is reneging on its obligation. The best it could do is to comply with the orders which in any case did not mean that it may not have any legal remedy against the respondent in the even that there was any such breach of the tenancy agreement.

21. In the premises, the application is disallowed with costs to the respondent.

Dated signed and delivered via video link at Nakuru this 3nd day of November 2022. H. K. CHEMITEI.JUDGE