[2021] KEBPRT 440 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 914 OF 2020 (NAIROBI)

FLORENCE MUTHONI..........................................................TENANT/APPLICANT

VERSUS

JANE NYAMBURA THUO………….……….................... TENANT/RESPONDENT

RULING

1. By a motion dated 16th March 2021, the Applicant is seeking for stay of execution of the ruling delivered on 12th March 2021 pending hearing and determination of the intended appeal.

2. The application is supported by the Applicant’s affidavit sworn on 16th March 2021 and the grounds on the face of the application.

3. It is the applicant’s case that she was aggrieved by the said ruling and intended to file an appeal against it. She states that the intended appeal is arguable and has overwhelming chances of success and the Respondent will not suffer any prejudice if the application is allowed.

4. The Applicant further states that she is ready and willing to abide by any conditions to be set by this court pending hearing of the appeal.

5. The Respondent filed a replying affidavit sworn by her on 29th March 2021 opposing the application stating that the same does not meet any of the conditions for granting stay of execution.

6. The Respondent deposes that no draft memorandum of appeal is annexed to the application and that the suit premises was subject matter of proceedings in H.C. Succession Cause no. 3135 of 2005 in respect of Estate of Peter Thuo Keiru and that granting the orders would amount to sanctioning intermeddling with the deceased’s estate.

7. The Respondent contends that an injustice will befall the estate if the Applicant is allowed to use the premises as she pleases without accounting to anyone.

8. The Applicant has pegged her application upon order 42 Rule 6(1), (2) (a) & (b) & order 51 Rule 1 of the Civil Procedure Rules.

9. I have considered the application against the applicable Law and make the following findings:-

i. The Applicant has not demonstrated that this court made any orders capable of execution to warrant an order for stay of execution.

ii. The Applicant has not exhibited any evidence of a pending appeal against the impugned ruling.

iii. The Applicant has not in any way established the grounds set out in order 42 Rule 6 of the Civil Procedure Rules to deserve an order for stay of execution.

iv. This court has no powers to order a stay of execution of its own orders under Cap. 301, Laws of Kenya.

10. In regard to the question of jurisdiction to order a stay of execution, I am guided by the decision in NATIONAL DRYCLEANERS LTD & ANOTHER –VS- NDUNE(1987) eKLR wherein the issue was considered in the light of the provisions of section 12 (1) of Cap. 301 at page 214 and held as follows:-

“The material words are “to vary or rescind” I must give the ordinary meaning of the words ‘vary’ or “rescind” Variation or rescission cannot include the words “stay pending appeal” An appeal generally seeks to set aside the orders of the Tribunal or court below. I appreciate that in some appeals, a variation or rescission is sought but such variation or rescission is necessarily with a view to having the orders of the court below set aside. In my opinion the words “vary or rescind” are used in section 12 of the Act in a restricted sense in that the Tribunal can possibly vary or rescind its order or determinations in the sense that the High Court can review its orders or judgments under order XLIV of Civil Procedure Rules and I find nothing else in the Act which empowers a Tribunal to grant stay pending appeal from the Tribunal to the High court”

11. In the premises, I hold that the application before me has no merit and the same is dismissed with costs to the Respondent.

RULING DATED, READ & SIGNED THIS 18TH DAY OFJUNE 2021.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

Odero for the Applicant

No Appearance for the Respondent