[2005] KEHC 3080 (KLR)
The court held that the mere pendency of an appeal does not bar the landlord from recovering rent lawfully due, as there was no stay of the previous court order requiring payment of rent directly to the landlord. The landlord is entitled to use any lawful means to recover rent in default. The court declined to make...
Source-derived case information.
- Citation
- [2005] KEHC 3080 (KLR)
- Parties
- Plaintiff: Hotel Marvelon Ltd; Defendant: Benson Mwangi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 76 of 2003
- Procedural Posture
- Civil Suit / Ruling on Adjournment and Rent Recovery Pending Appeals
- Outcome
- No final orders made; landlord at liberty to recover rent lawfully; tenants advised to file application if seeking court indulgence.
- Legal Topics
- Landlord Tenant Disputes, Rent Arrears, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hotel Marvelon Ltd
Plaintiff
Benson Mwangi
Defendant
Procedural Posture
Civil Suit / Ruling on Adjournment and Rent Recovery Pending Appeals
Legal Issues
- 1 Whether the pendency of appeals bars the landlord from recovering rent from the tenants.
- 2 Whether the court should make interim orders to secure the landlord's rent during the pendency of appeals.
- 3 Whether the tenants are in default of rent payment and the legal consequences thereof.
Ratio Decidendi
The court held that the mere pendency of an appeal does not bar the landlord from recovering rent lawfully due, as there was no stay of the previous court order requiring payment of rent directly to the landlord. The landlord is entitled to use any lawful means to recover rent in default. The court declined to make any further orders in the absence of a substantive application, emphasizing that tenants seeking indulgence must file an appropriate application. The court also noted that it would not make pronouncements that could prejudice pending appeals.
Court Disposition
No final orders made; landlord at liberty to recover rent lawfully; tenants advised to file application if seeking court indulgence.
Orders
- The landlord is at liberty to employ any lawful means to recover his rent.
- If the tenants wish to get any indulgence from the court, they should file an appropriate application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT O KENYA
AT NAKURU
Civil Suit 76 of 2003
HOTEL MARVELON LTD……………………………….....……………..PLAINTIFF
VERSUS
BENSON MWANGI………………………………………...…………DEFENDANT
RULING
On 7/9/2005, the hearing of this case which was earlier consolidated with HCCC No. 193 of 2004 was adjourned because of two appeals which were filed by the defendant/landlord against some orders issued by the Business Premises Rent Tribunal and which appeals have to be disposed of before this matter is heard. However, counsel for the landlord had urged the court not to adjourn the hearing because the tenants were in arrears of rent amounting to almost Kshs.2 million. In the event that the court was inclined to grant the application for adjournment, counsel urged the court to make orders that would secure the landlord’s rent. The tenants’ advocates had told the court that the landlord was refusing to accept rent and several cheques which had been sent to him or his advocate had been returned to the tenants.
On the other hand, Mr. Okeke for the landlord said that only one cheque of Kshs.20,000/- was sent to his office sometimes in August 2005. The cheque was drawn in the name of his client and he could not accept the same in view of an existing order by this court that required that the rent be paid to the landlord directly.
On 4th June, 2004, this court found that the monthly rent that was payable by the tenants was Kshs.171,000/- because the tenants had failed to file a reference to the Business Premises Rent Tribunal to oppose a notice of increment of rent from Kshs.20,000/- to Kshs.171,000/- per month which had been served by the landlord. The court also ordered that the outstanding rent and future rents be paid to the defendant directly. Hitherto, the rent was being deposited in court at the rate of Kshs.20,000/- per month.
Subsequent to the said ruling, the tenants filed a notice of appeal against the said decision. They also filed an application in the Business Premises Rent Tribunal seeking leave to file a reference out of time and the said application was granted. The landlord was aggrieved by grant of the said leave and filed an appeal against the said decision. This is one of the appeals that caused the adjournment of this case.
I perused this court file to find out if the ruling of 4th June, 2004 was ever stayed and my finding was that there had been no such order. It is trite law that the pendency of an appeal is not a bar to execution of any order in a matter and the landlord is perfectly entitled to recover his rent using any lawful way if the tenants have defaulted in payment of the same. This is not an application for stay of execution and I cannot therefore say much more than I have already stated herein above as that might be prejudicial to the pending appeals. Suffice to state that a tenant’s first obligation to a landlord is to pay his rent when it falls due and any court of law will frown upon any conduct on the part of a tenant which is intended to frustrate a landlord’s right of receiving such rent.
As there is no substantive application before me, I decline to make any final orders except to state that the landlord is at liberty to employ any lawful means to recover his rent and if on the other hand the tenants wish to get any indulgence from the court, they should file an appropriate application for court's consideration.
DATED, SIGNED AND DELIVERED at Nakuru this 13th day of September, 2005.
D. MUSINGA
JUDGE
13/9/2005
Ruling delivered in open court in the presence of Mr. Okeke for the defendant and Mr. Matiri and Mr. Waiganjo for the tenants.
D. MUSINGA
JUDGE
13/9/2005