[2009] KECA 92 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL OF KENYA

AT NAIROBI

Civil Appli 201 of 2009 (UR 138/2009)

FORWARD MOBILES LIMITED.............................APPLICATION

AND

GATMA HOLDINGS LIMITED................................RESPONDENT

(Being an application for stay of execution of decree pending an intended appeal from the decision

and decree of the High Court of Kenya at Nairobi (Milimani)(Khaminwa, J.) dated 10th June, 2009

in

H.C.C.C. No. 563 of 2007)

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RULING OF THE COURT

By an application expressed to be made under rule 5(2)(b) of the Court of Appeal Rules the applicant, Forward Mobiles Limited, applies in the main for an order of stay of execution of a decree of the superior court (Khaminwa, J) made on 16th June, 2009 pending the hearing and determination of the intended appeal and also for costs of the application. The application is based on the grounds set out on the body thereof and also on the affidavit of Ben Muchemi, the Managing Director of the applicant. There is further a replying affidavit of Joanina Wanjiku Maina, the Managing Director of the respondent in opposition to the application. The matter before the superior court which gave rise to the present application related to an application under Order XXXV Rule 1 and Order VI Rule 13(1)(b)(c) and (d) of the Civil Procedure Rules by the respondent in Civil Case No. 563 of 2007. The dispute was over premises known as L.R. No. 209/2376which the respondent had leased to the applicant for 6 years from 15th January, 2002 to 30th September, 2007 and which was to be surrendered to it after the expiry of the lease. The applicant did not surrender the said premises but continued occupying it by virtue of what he termed as periodic tenancy and/or by holding over and continued to pay rent to the respondent’s bank account. When the applicant refused to vacate the premises, the respondent filed a suit in the superior court for vacant possession. The applicant filed a defence to oppose the same. It was this defence which was the subject of the application under Order XXXV Rule 1 and Order VI Rule 13(1)(b)(c)and (d) stated herein before. The learned Judge allowed this application on 16th June, 2009 and gave the applicant thirty (30) days to vacate the suit premises. It is this decision which is the subject of the intended appeal and for which a notice of appeal was filed on 23rd June, 2009.

The application is based on the fact that the learned Judge erred in the exercise of her discretion to strike out the applicant’s defence and the entry of the summary judgment since the defence filed was not only arguable but also raised several triable issues including periodic tenancy and/or holding over by virtue of which the applicant was a protected tenant. It was heard before us on 23rd July, 2009 wherein counsel for the parties addressed us. Mr. Nyaoga, learned counsel for the applicant submitted that the dispute between the parties arose out of a lease agreement which was for six years but which after it determined/ended the applicant continued to occupy the premises and paid rent through the respondent’s bank account. He said that the intended appeal was arguable because his client was a protected tenant under section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Chapter 301 Laws of Kenya and that the court had no jurisdiction to deal with the case, an issue the superior court made no finding on. Because of this counsel felt the intended appeal was arguable.

Counsel for the respondent opposed the application on the ground that before the lease agreement determined the applicant had notice that it would not be renewed; and that the rent the applicant paid was after the expiry of the lease and without consent of the respondent.

The application argued before us as stated earlier is for stay of execution of the decree of the superior court made on 16th day of June, 2009, striking out the applicant’s defence and entering summary judgment for the respondent. We are aware a stay of execution order can issue if the applicant satisfies the usual twin principles which must govern the application, that is to say; that the intended appeal is arguable or, put it differently, that it is not frivolous, and secondly, that the intended appeal, if successful would be rendered nugatory unless the stay is granted. On the first principle counsel for the applicant referred us to section 2 of the Act and also that it was a protected tenant. We are not persuaded this section assists the applicant on the issue of jurisdiction; given in particular that the lease agreement stipulated its determination and also the correspondence from the respondent to the applicant immediately before and after the said lease expired to notify it that it was to surrender the premises after expiry of the lease. The respondent had specifically stated in one of the correspondence dated 3rd October, 2007 that it would not renew the lease. In this regard we are not persuaded this appeal is arguable. And having so found it may not be necessary for us to make a finding on the nugatory aspect. But even if we were to do so, the applicant has not shown that whatever he will suffer will be irreparable or that it cannot be compensated by damages or that the type of business it is engaged in can only be confined to the respondent’s premises. Orders made in this type of application are based on its peculiar facts and circumstances and in this application we are not persuaded the superior court failed to apply its judicial discretion correctly. This application has no merit and we order it to be dismissed with costs.

Delivered and dated at Nairobi this 16th day of October, 2009

P. K. TUNOI

.............................

JUDGE OF APPEAL

D. K. S. AGANYANYA

.............................

JUDGE OF APPEAL

ALNASHIR VISRAM

.............................

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR