[2009] KEHC 3280 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Civil Appeal 158 of 2008

FARIJALLAH H. AHMED………………………….....APPELLANT

VERSUS

1. JAMEELA TAHERALI HASSANALI

2. SHERBANU TAHERALI HASSANALI

3. ZAKIRALI TAHERALI HASSANALI………....RESPONDENTS

RULING

This application, brought under section 3A of the Civil Procedure Act, Order XXI Rule 22 (1) and Order XLI Rule 4 of the Civil Procedure Rules and all the enabling provisions of the Law is seeking one main order that execution be stayed pending hearing and determination of the applicant’s intended appeal. This application has indeed been filed in the appeal. The main reason for the application is that the respondents have caused to be levied a proclamation over the applicant’s assets in purported recovery of monies awarded to them by the Rent Restriction Tribunal and unless a stay of execution is granted, the respondents shall proceed with the sell of the applicant’s assets which event will render the applicant’s appeal nugatory. There is an affidavit in support of the application sworn by the applicant. It is deponed in the affidavit that the said tribunal condemned the applicant to pay increased rent of Kshs. 10,600/= from a previous rent of Kshs. 800/= without considering the applicant’s evidence and the applicant has appealed against the said increase. It is also deponed that the respondents are in the process of recovering the sums awarded by the said Tribunal and unless the stay of execution is granted, the applicant shall suffer irreparable loss and his appeal shall be rendered nugatory. The applicant has further deponed that he is willing to provide an undertaking as to damages and also comply with such conditions as the court may impose.

The application is opposed and there is an affidavit in reply sworn by Zakirali Taherali Hassanali, the third respondent. In the affidavit, the respondents accuse the applicant of material non-disclosure, the non-disclosure being that at the ex-parte stage, the applicant failed to disclose the correct rent he was paying and that the parties had agreed on terms of the lease even before the Tribunal adjudicated over their dispute. Another fact not disclosed was that since January 2007, the applicant had not paid any rent to the respondents.

The respondents further challenge the validity of the representation of the applicant on the basis that no leave was obtained before the applicant’s counsel came on record. The respondents further contend that unless the rent assessed by the Tribunal is secured, the respondents will not be able to recover the same in the event the applicant’s appeal fails.

When the application came up for hearing before me on 5th March 2009, counsel agreed to file written submissions which were in place by 20th May 2009. The submissions elaborated the stand points taken by the parties in their respective affidavits. I have considered the application, the affidavits and the submissions made by counsel. Having done so, I take the following view of the matter. For an applicant to be granted a stay of execution pending an appeal, he must satisfy all the conditions stated in Order XLI Rule 4 of the Civil Procedure Rules. Under sub-rule (1) of that rule, the applicant has to establish sufficient cause and under sub-rule (2) the applicant must demonstrate that he will suffer substantial loss if the order of stay is not granted and that the application has been lodged without unreasonable delay. Finally, he should demonstrate that he can furnish sufficient security to meet the decree in the event the amount due to the respondent has ultimately to be paid.

With regard to delay, it is noted that the order appealed from is dated 5th September 2008. The applicant lodged his appeal on 19th September 2008. This application was then lodged on 26th November 2008. The delay involved is of 2 3/4 months. Although the delay is not explained, I do not find the same inordinate. With regard to the establishment of sufficient cause, I note that the applicant has appealed against the Tribunal’s decision on three grounds including the ground that the Tribunal disregarded the appellant’s evidence and submissions. The appeal may therefore not be described as frivolous. In my view therefore the applicant has demonstrated sufficient cause.

With regard to the establishment by the applicant that substantial loss may result to him if the order of stay is not granted, I note that the applicant says that his appeal will be rendered nugatory if the execution proceeds and he ultimately succeeds in the appeal. The respondents on their part contend that they will suffer total loss in the event there is stay and the appeal fails. They say so because, they have had to levy distress to recover a smaller sum of Kshs. 36,000/= due under the lease. The applicant is still in the premises. Therefore, rent of whatever amount will be found payable, will continue to accrue. The applicant has also not alleged that the respondents will not be able to pay him the sums awarded by the Tribunal if stay is denied and he finally succeeds in the appeal. In the premises, I do not see how his appeal will be rendered nugatory if stay is declined.

The applicant has sworn in paragraph 10 of his supporting affidavit as follows:-

“(10) That I am now apprehensive that in the event orders of stay of execution are not granted, the Respondents/Landlords will proceed to distrain against me thereby occasioning me irreparable loss.”

So what is the alleged “irreparable loss”? The applicant had the onus to demonstrate what that loss is. He has not done so in this application. In his submissions, counsel for the applicant states that the goods sought to be distrained are of immense intrinsic value to the family of the applicant and are irreplaceable by any amount of payment in damages. There is however, no such deposition by the applicant. Submissions, with all due respect ,cannot replace affidavit evidence. The applicant has therefore not demonstrated that substantial loss will result to him unless the order of stay is granted.

Before concluding this matter, I will briefly mention two matters which should have really been argued as preliminary objections in point of Law. The first matter is the objection raised by the respondents that the advocates who canvassed this application are not properly on record having come on record after the judgment in the Tribunal case without leave of the court. With respect, there is no such requirement under the rules and the objection is accordingly overruled. The second objection was raised on the basis that the applicant is guilty of material non-disclosure for failing to disclose that the parties had entered into a lease agreement over the suit premises even before the Tribunal proceedings and that the order of the Tribunal was pursuant to an application by the respondents to asses the rent payable in respect of the suit premises. The proceedings of the Tribunal have however not been annexed and the annexed lease agreement is unexecuted. I cannot therefore dismiss this application for non-disclosure. Failure to demonstrate substantial loss would have been the end of the matter, but the respondents have proposed a conditional stay of execution. It is only on that basis that I make the following orders:-

1) The applicant to deposit into a joint account to be opened at Kenya Commercial Bank Mombasa Branch in the names of the advocates of the parties the sum of one hundred fifty thousand (150,000/=) within the next 90 days.

2) The applicant to deposit future extra rent of Kshs. 7,800/= per month in the said account with effect from 1st October 2009.

3) The applicant to pay to the respondents or their advocates Kshs. 2,800/= per month with effect from 1st July 2009.

4) There shall be stay of execution if the applicant complies with 1, 2 and 3 above.

5) In default of compliance with 1, 2 and 3 above, the applicant’s Notice of Motion shall stand dismissed with costs.

6) Costs of the Notice of Motion shall otherwise abide the results of the appeal.

7) Each party has liberty to apply.

Orders accordingly.

DATED AND DELIVERED AT MOMBASA THIS 18TH DAY OF JUNE 2009.

F. AZANGALALA

JUDGE

Read in the presence of:-

Mr. Bosire holding brief for Mr. Alando for the Applicant and Mr. Kasmani for the Respondents.

F. AZANGALALA

JUDGE

18TH JUNE 2009