[2013] KEHC 6726 (KLR)
The court found that the appellant had not demonstrated that he would suffer substantial loss if the stay was not granted, especially in light of his persistent default in paying rent. The court emphasized that the right of appeal does not entitle a tenant to continue breaching fundamental obligations, such as...
Source-derived case information.
- Citation
- [2013] KEHC 6726 (KLR)
- Parties
- Appellant: John Oyamo Airo; Respondent: Moses Abwogi Inyanya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 207 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- DW Mbuteti
- Legal Topics
- Controlled Tenancy, Stay of Execution, Rent Arrears, Termination of Tenancy
- 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
John Oyamo Airo
Appellant
Moses Abwogi Inyanya
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the Tribunal's judgment pending appeal.
- 2 Whether the appellant will suffer substantial loss if the stay is not granted.
- 3 Whether the appellant has complied with his obligations as a tenant, particularly timely payment of rent.
Ratio Decidendi
The court found that the appellant had not demonstrated that he would suffer substantial loss if the stay was not granted, especially in light of his persistent default in paying rent. The court emphasized that the right of appeal does not entitle a tenant to continue breaching fundamental obligations, such as timely payment of rent. The appellant had also failed to take meaningful steps to prosecute the appeal. Consequently, the application for stay of execution was dismissed, and the interim stay previously granted was lifted.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay of execution is dismissed with costs to the respondent.
- The interim stay of execution now in place is hereby lifted.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO 207 OF 2013
JOHN OYAMO AIRO......................................................... APPELLANT
VERSUS
MOSES ABWOGI INYANYA...........................................RESPONDENT
R U L I N G
1. The Appellant is the Respondent’s tenant in business premises situated within Nairobi. The tenancy is controlled under the Landlord and Tenant (Shops, Hotels & Catering Establishments) Act, Cap 301(theAct).
2. In a judgment dated and delivered on 22nd March 2013 the Business Premises Rent Tribunal (the Tribunal) upheld the Respondent’s notice to terminate the tenancy served upon the Appellant on 1st October 2012. The notice was to take effect on 1st January 2013 but the Tribunal extended the date to 1st May 2013. The notice had been given upon the ground of persistent delay in paying rent.
3. The Appellant exercised his undoubted right of appeal by lodging the present appeal. He also applied by notice of motion dated 29th April 2013, in effect, for stay of execution of the judgment of the Tribunal pending disposal of the appeal. The Respondent opposed the application.
4. I have read the affidavits sworn in support of the application (the supporting and also a supplementary affidavit) and the replying affidavit filed in opposition. I have also considered the submissions of the learned counsels appearing and perused the court record.
5. The appeal was lodged on 22nd April 2013. But there do not appear to have been any discernible steps taken by the Appellant towards preparation of the appeal for hearing.
6. The notice to vacate was to take effect on 1st January 2013. We are now approaching the middle of October 2013. The Tribunal was satisfied, upon evidence placed before it, that the Appellant was a persistent defaulter in paying rent as and when it fell due. Even before this court it transpired on 2nd July 2013 when this application was canvassed that the Appellant was in arrears of rent for the months of May, June and July 2013.
7. The Appellant’s right of appeal cannot be a right to perpetuate a tenancy when he has been in persistent breach of one of the cardinal obligations of a tenant – payment of rent as and when it becomes due.
8. I am not satisfied, upon the facts of this case, that the Appellant stands to suffer substantial loss unless the order sought is granted. The application must be refused; it is dismissed with costs to the Respondent. The interim stay of execution now in place is hereby lifted. Those will be the orders of the court.
DATED AND SIGNED AT NAIROBI THIS 10TH DAY OF OCTOBER 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 11TH DAY OF OCTOBER 2013