[2002] KEHC 940 (KLR)
The court found that the applicants, being protected tenants under the Rent Restriction Act, would suffer substantial loss if the stay of execution was not granted, as they may not be able to afford the increased rent and risk losing their statutory protection. The court held that the filing of an appeal gives the...
Source-derived case information.
- Citation
- [2002] KEHC 940 (KLR)
- Parties
- Plaintiff: Hussein Gulabkhan & 10 Others; Defendant: Market Mansion
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 7 of 2002
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed on conditions.
- Legal Topics
- Stay of Execution, Rent Restriction, Controlled Tenancies, Security for Stay, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hussein Gulabkhan & 10 Others
Plaintiff
Market Mansion
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for grant of stay of execution of the tribunal order increasing rent.
- 2 Whether the applicants will suffer substantial loss if stay is not granted.
- 3 What security, if any, should be furnished by the applicants for the grant of stay.
Ratio Decidendi
The court found that the applicants, being protected tenants under the Rent Restriction Act, would suffer substantial loss if the stay of execution was not granted, as they may not be able to afford the increased rent and risk losing their statutory protection. The court held that the filing of an appeal gives the applicants a right to have their appeal heard, and that the inability to pay the increased rent constituted sufficient cause for stay. However, the court imposed a condition that each applicant must furnish a guarantor acceptable to the respondent in the sum of KES 100,000 as security, and that the intended appeal must be prosecuted within twelve months. The application for stay...
Court Disposition
Application for stay of execution allowed on conditions.
Orders
- Stay of execution of the tribunal order increasing rent is granted.
- Each applicant must furnish a guarantor acceptable to the respondent in the sum of KES 100,000 as security.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 7 OF 2002
HUSSEIN GULABKHAN & 10 OTHERS …………………. PLAINTIFFS
VERSUS
MARKET MANSION ….…………........……………………… DEFENDANT
R U L I N G
The applicants are tenants of controlled tenancies under the Rent Restriction Act. They seek stay of Execution of the Tribunal order increasing the monthly rents payable quite substantially.
The application is by Notice of Motion under the provisions of Order 41 rule 4 of the Civil Procedure Rules. The supporting affidavit shows that the current rents range from 560/- to 1500/- per month and the increase brings all the rents between 3,000/- to 35000 to 4000/- and to 4500/- and finally the highest being Shs.5,000/- per month.
The applicants have filed appeal against this increase. They say they cannot raise such large sums of money and they hope that the tribunal order will be set on appeal aside. Also they say they will lose the protection afforded to tenants under the Rent Restriction Act.
The provisions of Order 41 rule 4 are clear. Sufficient cause must be shown for court order for judgment to be stayed. Filing an appeal is not sufficient cause. The applicant must show he will suffer substantial loss if the stay is not granted. Security must be ordered in case such stay is granted. In this case I find that it is substantial loss for a protected tenant who has been enjoying Rent Restriction under the Act will suffer substantial loss if his protection is taken away from him. Also there is an appeal which is a right. Can the Applicants furnish adequate security seeing that the appeal may be delayed. The landlord proposes that the only security viable is to order payment of rent as increased. Also that the appeal is not admitted yet.
I am of the view that once an appeal is filed it subsists until dismissed either summarily or after hearing. Also it is clear these applicants may not have the financial ability to meet the increased rent. I am persuaded therefore that order of stay may be granted. For security the applicants must furnish guarantors acceptable to the Respondent in the sum of Shs.100,000/- for each Applicant. Further the intended appeal must be prosecuted within the next twelve months from today. The application is allowed on those conditions. Costs shall await the appeal.
Dated at Mombasa this 20th Day of June, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Readin the presence of Mr. Kiume
Mr. Were
Mr. Kiume to be supplied with copies of proceedings and ruling upon
payment of copying charge.
J. KHAMINWA
COMMISSIONER OF ASSIZE