[2024] KEELC 7405 (KLR)

Mirumbi v Karisa (Civil Appeal E003 of 2024) [2024] KEELC 7405 (KLR) (6 November 2024) (Ruling)

Neutral citation: [2024] KEELC 7405 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Civil Appeal E003 of 2024

LL Naikuni, J

November 6, 2024

Between

Amos Mirumbi

Tenant

and

Stepheno Furaha Karisa

Defendant

Ruling

I. Introduction 1. This Honorable Court is tasked to make a determination of two motions namely the Notice of Motion application dated 31st, January, 2024 filed by Amos Mirumbi, the Appellant/ Applicant herein. It was brought under the provision of Sections 1A, 1B & 3A of the Civil Procedure Act Cap 21 and Order 42 rule 6 of the Civil Procedure Rules 2010. The Appellant herein, through his Advocates on record also filed a Chamber summons application dated 22nd March, 2024 brought under the Judicature Act Cap 8, Section 10 (The High Court Practice and Procedure) Rules (Part 1 Rule 3).

2. Despite of service of the two motions being effected upon the Respondents, no responses were elicited whatsoever. In the given circumstances, it follows that the applications were unopposed but conventionally the Court will still proceed to rule on the matter on its own merit thereof.

II. The Applicant’s case on the Notice of Motion application dated 31st January, 2024 3. The Applicant sought for the following orders: -a.Spent.b.Spent.c.That this Honourable Court pleased to grant a stay of execution of the Ruling/Order delivered and/or issued on the 12th day of January 2023, in Mombasa Tribunal case No.153 of 2023 pending the hearing and determination of the Appeal filed hereind.That costs of the application be provided for.

4. The application herein was premised on the grounds, testimonial facts and averments made out under the 8 Paragraphed Supporting Affidavit of –AMOS MIRUMBI MOSE, sworn and dated the same day with the application with one annexture marked as “AMM - 1”. The Applicant averred that:a.He was sued by the respondent herein in Mombasa business Tribunal case No.153 of 2023 whereby he sought various reliefs including but not limited to vacant possession and in default the Appellant be forcibly eviction.b.The presiding panel chairperson of the Business Premises Rent Tribunal delivered her ruling on the 12th January 2024 granting the following orders:-i.The Notice to terminate tenancy dated 27th March 2023 is hereby upheld and the tenant's tenancy in respect to the suit premises is hereby terminated.ii.The Application dated 14th June 2023 is hereby allowed with costs.iii.The tenant shall forthwith vacate the suit premises within 30 days hereby and in default shall be forcibly evicted therefrom by a licensed auctioneer who shall be provided with security by the OCS Nyali Police Station.iv.The tenant shall pay costs of a sum of Kenya Shillings Thirty Thousand (Kshs.30, 000/=) to the landlord. Annexed and marked as “AMM - 1” was a copy of the ruling.c.Upon perusal of the impugned ruling, he felt aggrieved and preferred appeal to this Honourable Court which appeal is arguable and has high chances of success.d.He stood to suffer substantial loss and damages in the event the orders sought were not granted and the Respondent proceeded to execute the order granted on the 12th January, 2024 as this would mean loosing his income/ business which was his basic source of his income and livelihood.e.The Application herein had been filed without any delay.f.He was ready and willing to abide by any condition this Honourable Court might find fit and just to so issue as a security for the due performance of the decree including but not limited to depositing the outstanding rent in court.g.Further to paragraph 4 above being reiterated that the Appeal filed herein is arguable and has high chances of success in that:-i.The Learned trial chairperson failed to consider the fact that there was an arbitrary increment of rent.ii.The Learned trial chairperson failed to consider the fact that there were many outstanding issues which required to be ironed out between me and the respondentiii.The Learned trial chairperson erred in Law and fait by failure to consider the fact that failure by the respond to file the respondent's reference was that but a technicality which did not go to the roots of the case before her and in any event the appellant duly responded to the substance Notice of Motion filed therein.iv.The Learned trial learned chairperson failed to consider the fact that the tribunal court lacked jurisdiction to entertain the matter since the lease period was for over 5 years and three months.v.The Learned trial Chairperson failed to order or make finding that the landlord was in breach of tenancy agreement and did not address her mind of the issued of breach of contract since the lease agreement was valid until the year 2027 and order the respondent to pay the appellant for the remainder of the contract before evicting him.vi.The Learned trial chairperson failed to allow parties to proceed to the full hearing and decided the said suit on technicality thereby denying the appellant chance to state his case.h.It was therefore in the interest of justice and equality that the orders sought were granted.

III. The Applicant’s case in the Chamber Summons application dated 22nd March, 2024 5. The Applicant sought for the following orders: -a.Spent.b.That on the 2nd February, 2024, the duty Judge certified the Notice of Motion dated 31st January, 2024 as urgent and granted stay of Execution pending inter – parties hearing on 21st March 2024. c.That TRIAL COURT did not sit due to the fact the inter-parties hearing as issued by the duty judge fell on vacation period.d.That they had filed certificate of urgency requesting that the interim orders be extended and the duty judge do issue directions on how to dispose of the motion dated 31st January 2024 during the summer vacation.

6. The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 7 paragraphed Supporting Affidavit of –JOSEPH OTWERE, an Advocate of this Honourable Court practicing as such as an Advocate in the Law firm of Meesrs. Otieno Otwere & Associates who have the conduct of this case on behalf of the Appellant/Applicant sworn and dated the same day with the application. The Applicant averred that:a.On 2nd February 2024, the duty Judge certified the notice of motion dated 31st January 2024 as urgent and granted stay of execution pending the inter-parties scheduled hearing on 21st March 2024. b.On 21st March 2024, the trial court did not sit due to the vacation and therefore the interim orders were not extended.c.It was therefore apparently clear that since the interim orders were not extended the Appellant/Applicants may be evicted or his property may be attached at any time.d.They had filed a certificate of urgency herein purposely for the extension of interim orders and for the issuance of directions on how the application dated 31st January 2024 can be heard.e.In light of the above, they urged this Honourable Court to extend the interim orders and issued further directions on the hearing of the said motion during the vacation period.

IV. Submissions 7. On 8th May, 2024 while all the parties were present in Court, they were directed to have the Notices of Motion applications dated 31st January, 2024 and the one dated 22nd March, 2024 be disposed of by way of written submissions. Unfortunately, by the time the Honourable Court was penning down its Ruling, it had not accessed any of the filed submissions and thus proceeded to deliver the decision on its own merit reserved on 15th October, 2024 by Court accordingly.

V. Analysis & Determination. 8. I have carefully read and considered the pleadings herein by the Appellant/Applicant, the relevant provisions of the Constitution of Kenya, 2010 and statures.

9. In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has three (3) framed issues for its determination. These are:-a.Whether the Notice of Motion application dated 31st January, 2024 seeking a stay of execution of the Ruling/Order delivered and/or issued on the 12th January, 2023, in the BPRT Mombasa Tribunal case No.153 of 2023 pending the hearing and determination of the Appeal filed herein is merited?b.Whether the parties herein were entitled to the reliefs sought.c.Who will bear the Costs of Notice of Motion application dated 31st January, 2024.

ISSUE No. a). Whether the Notice of Motion application dated 31st January, 2024 seeking a stay of execution of the Ruling/Order delivered and/or issued on the 12th day of January 2023, in the BPRT Mombasa Tribunal Case No.153 of 2023 pending the hearing and determination of the Appeal filed herein is merited 10. Under this Sub – title, the main gist of the matter is on whether or not to grant Stay of Execution of the Ruling/Order delivered and/or issued on the 12th day of January 2023, in Mombasa Business Premises & Rent Tribunal BPRT case No.153 of 2023. The law concerning stay of execution pending Appeal is found in the provision of Order 42 Rule 6 of the Civil Procedure Rules which stipulates as follows:-“No Appeal or second Appeal shall operate as a stay of execution or proceedings under a decree or order Appealed from except in so far as the Court Appealed from may order but, the Court Appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court Appealed from, the Court to which such Appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the Appeal is preferred may apply to the appellate Court to have such order set aside.(2)No order for stay of execution shall be made under sub rule (1) unless— (a)the Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.

11. It is trite law that stay of execution pending appeal is a discretionary power bestowed upon this court by the law. In the initial stages of building Jurisprudence around this legal aspect, the Court of Appeal in the case of “Butt –Versus- Rent Restriction Tribunal {1982} KLR 417” gave guidance on how a court should exercise the said discretion and held that:“1. The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the Judge’s discretion.

3. A Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.

4. The Court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

5. The Court in exercising its powers under Order XLI rule 4 (2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

12. Further to the above, stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act, Cap. 21 or in the interpretation of any of its provisions.

13. The provision of Section 1A (2) of the Civil Procedure Act, Cap. 21 provides that “the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective” while under section 1B some of the aims of the said objectives are; “the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.”

14. There are three conditions for granting of stay order pending Appeal under Order 42 Rule 6 (2) of the Civil Procedure Rules to which:i.The Court is satisfied that substantial loss may result to the Applicant unless stay of execution is ordered;ii.The application is brought without undue delay andiii.Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.

15. I find issues for determination arising therein namely:i.Whether the Applicant has satisfactorily discharged the conditions warranting the grant of stay of execution of ruling/ order pending Appeal.ii.What orders this Court should make

16. The purpose of stay of execution is to preserve the substratum of the case. In the case of “Consolidated Marine – Versus - Nampijja & Another, Civil App.No.93 of 1989 (Nairobi)”, the Court held that:-“The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory”.

17. As such, for an applicant to move the court into exercising the said discretion in his favour, the applicant must satisfy the court that substantial loss may result to him unless the stay is granted, that the application has been made without undue delay and that the applicant has given security or is ready to give security for due performance of the decree.

18. As for the applicant having to suffer substantial loss, in the case of “Kenya Shell Limited – Versus - Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988) KAR 1018” the Court of Appeal pronounced itself to the effect that:“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.”

19. The Court of Appeal in the case of “Mukuma – Versus - Abuoga (1988) KLR 645” where their Lordships stated that;“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.”

20. The Applicant has a burden to show the substantial loss they are likely to suffer if no stay is ordered. This is in recognition that both parties have rights; the Applicant to the Appeal which includes the prospects that the Appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The Court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination. {See the case of “Absalom Dora –Versus -Turbo Transporters (2013) (eKLR)”}.

21. As F. Gikonyo J stated in the case of:- “Geoffery Muriungi & another – Versus - John Rukunga M’imonyo suing as Legal representative of the estate of Kinoti Simon Rukunga (Deceased) [2016] eKLR” and which wisdom I am persuaded with:-“……….the undisputed purpose of stay pending appeal is to prevent a successful appellant from becoming a holder of a barren result for reason that he cannot realize the fruits of his success in the appeal. I always refer to that eventuality as “reducing the successful appellant into a pious explorer in the judicial process’’. The said state of affairs is what is referred to as “substantial loss’’ within the jurisprudence in the High Court, or “rendering the appeal nugatory’’ within the juridical precincts of the Court of Appeal: and that is the loss which is sought to be prevented by an order for stay of execution pending appeal…….”

ISSUE No. b). Whether the parties herein were entitled to the reliefs sought 22. Under this sub heading, the Honourable Court now wishes to apply the above legal principles to the instant case. From the proceedings, the Applicant herein filed an application dated 31st January, 2024 seeking orders to stay of the Ruling/Order delivered and/or issued on the 12th day of January 2023, in the BPRT Mombasa Tribunal Case No.153 of 2023. According to the applicant, the said ruling/ order upholding the notice of termination for his tenancy was upheld dated 27th March 2023 is hereby upheld and the tenant's tenancy in respect to the suit premises is hereby terminated. The Application dated 14th June 2023 was allowed with costs. The tenant shall forthwith vacate the suit premises within 30 days hereby and in default shall be forcibly evicted therefrom by a licensed auctioneer who shall be provided with security by the OCS Nyali Police Station. The tenant shall pay costs of Kenya Shillings Thirty Thousand (Kshs. 30, 000/-) to the landlord.

23. In determining whether sufficient cause has been shown, the court should be guided by the three pre-requisites provided under Order 42 Rule 6. Firstly, the application must be brought without undue delay; secondly, the court will satisfy itself that substantial loss may result to the Applicants unless stay of execution is granted; and thirdly such security as the court orders for the due performance of such decree or order as may ultimately be binding on them has been given by the Applicant.

24. Regarding the pre-requisite conditions evolving from the law is on substantial loss occurring to the Appellant. The court has already deliberated on this aspect and taken into consideration of it from the case of: - “Kenya Shell Limited (Supra)”. From the surrounding facts and inferences of the instant case, I am strongly persuaded that indeed, the Applicant has proved that it will suffer substantially if the orders for stay of the execution are not granted as prayed. For that reason, the application should succeed.

25. On the second issue to determine is where the application for stay of execution was made without inordinate delay. From the record, the ruling being appealed against was delivered on 12th January, 2024 and the application herein was filed on 31st January, 2024, the Notice of appeal on 31st January, 2024. This application was filed after about 19 days after the judgment. Clearly, in this Honourable Court’s assessment, the application was made timeously without any delay. Indeed, the application was filed expeditiously and without undue delay.

26. On the last condition as to provision of security, I find that Order 42 Rule 6 (2) (b) of the Civil Procedure Rules stipulate in mandatory terms that the third condition that a party needs to fulfil so as to be granted the stay order pending Appeal is that (s)he must furnish security. Has made no provisions for security in his application.

27. This provision of the law notwithstanding from the face value, this court is not bound by the type of security offered by an applicant. It can make appropriate orders which serve the interest of justice taking into account the fact that money depreciates unless it is kept in an interest earning account for the period of the appeal.

28. In saying so I seek refuge from the case of “Aron C. Sharma – Versus - Ashana Raikundalia T/A Rairundalia & Co. Advocates” the court held that:“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment debtor … Civil process is quite different because in civil process the judgment is like a debt hence the Applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the Applicants. I presume the security must be one which can serve that purpose.”

29. Therefore, in the interest of justice and fairness, it behooved the Applicant herein to furnish security as stipulated by the law. Stay of execution is exactly what it states. It matters not whether the issue in contention is the amount awarded in the ruling/ order, or liability or legality of the extracted warrants as in this case. Where a party seeks to stay execution, the Court must be guided by the parameters set out in Order 42 Rule 6.

30. The Court observed in the case of:- “Gianfranco Manenthi & Another – Versus - Africa Merchant Assurance Company Limited [2019] eKLR”, thus:-“……… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his Judgment in case the appeal fails.Further, Order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the Plaintiff to initiate execution proceedings where the judgement involves a money decree. The court would order for the release of the deposited decretal amount to the Respondent in the appeal … Thus the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the Applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree. (Underlining mine for emphasis)

31. As already demonstrated in “James Wangalwa & Another vs. Agnes Naliaka Cheseto (supra)” the three (3) conditions for granting stay of execution pending appeal must be met simultaneously. They are conjunctive and not disjunctive. It is my finding that the Applicant herein, though they brought this Application without undue delay and adequately demonstrated the substantial loss that they would suffer as stipulated by sub-rule 2b.

32. According to the Plaintiff/ Respondent none of the conditions above have been fulfilled by the Applicant herein. The application does not establish any factor which shows that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal. The Applicant has not demonstrated any loss, financial or otherwise, that it will suffer should this Honourable Court decline the invitation to stay the execution of its ruling/ order.

33. In the result, I grant the order for stay of execution on condition that the Applicants shall furnish security being a reasonable sum equivalent to the outstanding amounts in contention being a sum of Kenya Shillings One Hundred and Fifty Thousand (Kshs. 150,000/-) in Joint Escrow bank account of a reputable Commercial bank to be held in the names of Messrs. Otieno Otwere & Associates Advocates and the Messrs. Lawrence Obonyo Legal Advocates WITHIN THE NEXT THIRTY (30) days from the delivery of this Ruling pending the hearing and determination of the appeal.

Issue No. c). Who will bear the Costs of Notice of Motion application dated 31st January, 2024. 34. It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh (2014) eKLR” and Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, (2014) eKLR”.

35. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In this case, this Honourable Court has reserved its discretion in not awarding costs.

VI. Conclusion & Disposition 36. In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interest as regards to balance of convenience. Ultimately, in view of the foregoing detailed analysis to these two (2) applications, this court arrives at the following decision and makes the orders below:-a.That the Notice of Motion application dated 31st January, 2024 be and is hereby found to have merit and hence allowed subject to the fulfilment of the Pre – Conditions stated herein.b.That this Honourable Court pleased to grant a stay of execution of the Ruling/Order delivered and/or issued on the 12th day of January 2023, in BPRT Mombasa Tribunal Case No.153 of 2023 pending the hearing and determination of the Appeal filed herein.c.That an order made that the 1st Defendant/ Applicant to deposit a sum of Kenya Shillings One Hundred & Fifty Thousand (Kshs. 150,000/-) as security deposit for the performance of the Ruling/Order delivered and/or issued on the 12th day of January 2023, in the BPRT Mombasa Tribunal case No.153 of 2023 in Joint Escrow bank account of a reputable Commercial Bank to be held in the names of Messrs. Otieno Otwere & Associates Advocates and the Messrs. Lawrence Obonyo Legal Advocates WITHIN THE NEXT THIRTY (30) days from the delivery of this Ruling pending the hearing and determination of the appeal.d.That failure to adhere with the condition under Clause (c) herein above of this Ruling the Notice of Motion application dated 31st January, 2024 shall automatically stand dismissed thereof and execution of the Decree shall ensue procedurally as provided for by law.e.That by virtue of allowing the Notice of Motion application dated 31st January, 2024, the Chamber Summons application dated 22nd March, 2024 has been overtaken by events and the same stands struck out.f.That the Appellant/Applicant granted 45 days leave to have filed a Record of Appeal from the date of the delivery of this Ruling. There shall be a mention on 28th January, 2025 for the admission of the appeal and taking directions for the disposal of the appeal pursuant to the provision of Section 79B of the Civil Procedure Act, Cap. 21 and Order 42 Rules 11, 13 & 16 of the Civil Procedure Rules, 2010. g.That there shall be no orders as to costs.

It is so ordered accordingly.

RULING DELIEVERED THROUGH THE MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 6TH DAY OF NOVEMBER 2024. …………………….…..…………….HON. MR. JUSTICE L. L. NAIKUNI,ENVIRONMENT AND LAND COURT AT MOMBASARuling delivered in the presence of:a. M/s. Firdaus Mbula, the Court Assistant.b. No appearance for the Appellant/Applicantc. No appearance for the Respondent.