[2021] KEHC 6572 (KLR)
The court found that while the appellant did not fully address the requirements for stay of execution under Order 42 Rule 6(2), he did file the application without unreasonable delay. However, the appellant failed to demonstrate how eviction would cause substantial loss beyond stating he would be evicted. The court...
Source-derived case information.
- Citation
- [2021] KEHC 6572 (KLR)
- Parties
- Appellant: James Mburu Njoroge t/a Jactam Agencies; Respondent: Hanbit Limited
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 57 of 2020
- Procedural Posture
- Civil Appeal / Stay Application Ruling
- Outcome
- Conditional stay of execution granted.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Controlled Tenancy, Jurisdiction of Magistrate Courts, Eviction Orders, Security for Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mburu Njoroge t/a Jactam Agencies
Appellant
Hanbit Limited
Respondent
Procedural Posture
Civil Appeal / Stay Application Ruling
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the eviction order pending appeal.
- 2 Whether the appellant's tenancy is a controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.
- 3 Whether the trial court had jurisdiction to grant eviction orders in a miscellaneous application without a substantive suit.
Ratio Decidendi
The court found that while the appellant did not fully address the requirements for stay of execution under Order 42 Rule 6(2), he did file the application without unreasonable delay. However, the appellant failed to demonstrate how eviction would cause substantial loss beyond stating he would be evicted. The court noted persistent rent arrears owed by the appellant and, in balancing the interests of both parties, determined that a conditional stay was appropriate. The stay of execution was granted on the condition that the appellant pays Kshs. 1,500,000 to the respondent within five days and continues to pay rent as it falls due. Failure to comply would entitle the respondent to proceed...
Court Disposition
Conditional stay of execution granted.
Orders
- Stay of execution of the order of 27th April, 2020 in Kiambu Chief Magistrate Court Misc. Application No. 37 of 2019 is granted on condition that the appellant pays the respondent Kshs. 1,500,000 within five days and continues to pay rent as it falls due.
- In default of payment as set out above, execution to proceed.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CIVIL APPEAL NO. 57 OF 2020
JAMES MBURU NJOROGE T/A JACTAM AGENCIES........APPELLANT
VS.
HANBIT LIMITED....................................................................RESPONDENT
RULING
1. JAMES MBURU NJOROGE T/A JACTAM AGENCIESis the appellant. By his application dated 14th May, 2020 he seeks stay of execution of the order of Kiambu Chief Magistrate’s Court in Miscellaneous Application No. 37 of 2019 issued on 27th April, 2020. The appellant’s said application is premised on the grounds that the trial court varied the terms of the lease between appellant and HANBIT LIMITED, the respondent without the parties having testified before that court; that if stay order is not granted the appellant will be evicted which would render the appeal academic exercise; and that the appeal has high chances of success.
ANALYSIS
2. I have considered both the appellant’s and respondent’s affidavit, the respondent’s submissions and grounds of opposition.
3. The background of this appeal is that the respondent through a miscellaneous application before Kiambu Chief Magistrate’s court sought orders for the appellant to vacate plot Number KIAMBAA/THIMBUGUA/2384 (the property) and on appellant’s failure to vacate the respondent be at liberty to evict the appellant.
4. Appellant raised preliminary objection to that application raising grounds that his tenancy was controlled tenancy under the Landlord and Tenant (Shops, Hotels and Catering Establishment) Act Cap 301; on the ground that the Kiambu Chief Magistrate’s court did not have jurisdiction to entertain the matter; and that the orders of eviction sought by the respondent could only be issued in a substantive suit.
5. The trial court dismissed appellant’s preliminary objection and granted respondent orders for appellant to vacate the property and in default the respondent was granted liberty to evict appellant. It is those orders appellant has directed his present appeal.
6. Consideration of an application for stay of execution pending appeal is based on the provisions of Order 42 Rule 6. Rule 6(2) of that Order provides:-
“[a] that substantial loss may result to the applicant unless the order is made;
[b] that the application has been made without unreasonable delay;
[c] that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.”
7. The appellant did not directly address himself to the above provisions other than stating that if orders of stay were not granted he would be evicted from the property. He did not elaborate how that eviction would impact his business. Although he fulfilled the second requirement under Order 42 Rule 6(2)that of filing the application for stay of execution without unreasonable delay I am of the view that in balancing the interests of the appellant and the respondent, I ought to order the appellant to provide security as a condition of stay. The respondent deponed through the replying affidavit of its director, MINYOUNG CHOI, dated 29th January, 2021 that the appellant owed rental arrears to the respondent Kshs.1 million. It is clear from the proceedings of the trial court and now before this Court that the appellant has persistently had rent arrears owed to the respondent. It is for the above reason that I grant the conditional stay. In doing so, I am persuaded by the decision of KENYA COMMERCIAL BANK LTD VS. SUN CITY PRPERTIES LTD & 5 OTHERS (2012) eKLR thus:-
DIPOSITION
8. I grant the following orders:-
(a) There shall be stay of execution of the order of 27th April, 2020 in Kiambu Chief Magistrate Court Misc. Application No. 37 of 2019 on condition that James Mburu Njoroge t/a Jactam Agenciesdoes pay the respondent Kshs.1,500,000/- (one million five hundred thousand shillings) within five (5) days from this date hereof and does henceforth continue to pay the rent to the respondent as it falls due.
(b) In default of payment as set out in (a) above execution to proceed.
(c) The costs of the Notice of Motion dated 14th May, 2020 shall abide with the outcome of this appeal.
RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF JUNE, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant: Ndege
For Appellant: …Mr. Thuku
For Respondent: Mr. Macharia
COURT
Ruling delivered virtually.
MARY KASANGO
JUDGE