[2005] KEHC 367 (KLR)
The High Court found that the Business Rent Tribunal has exclusive jurisdiction over disputes concerning premises governed by Cap 301. The court was persuaded that unless a stay of proceedings in the Chief Magistrate's Court was granted, the pending appeal would be rendered nugatory. The court further noted that the...
Source-derived case information.
- Citation
- [2005] KEHC 367 (KLR)
- Parties
- Appellant: Mohamed Abeid; Respondent: Abdalla Ameir Nashi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 7 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application for stay of proceedings allowed
- Legal Topics
- Landlord and Tenant Disputes, Jurisdiction of Tribunals, Stay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Abeid
Appellant
Abdalla Ameir Nashi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the High Court should grant a stay of proceedings in the Chief Magistrate's Court pending the determination of the appeal.
- 2 Whether the Business Rent Tribunal has exclusive jurisdiction over disputes under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap 301.
Ratio Decidendi
The High Court found that the Business Rent Tribunal has exclusive jurisdiction over disputes concerning premises governed by Cap 301. The court was persuaded that unless a stay of proceedings in the Chief Magistrate's Court was granted, the pending appeal would be rendered nugatory. The court further noted that the appeal had a good chance of success given the jurisdictional issue. Consequently, the application for stay was allowed to preserve the integrity of the appellate process and to ensure that the tribunal's jurisdiction is not usurped by the subordinate court.
Court Disposition
application for stay of proceedings allowed
Orders
- Stay of hearing in CMCC No.5079/2004 granted pending hearing of the appeal.
- Costs of the application awarded to the applicant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Appeal 7 of 2005
MOHAMED ABEID …………………………………………………..…APPELLANT
VERSUS
ABDALLA AMEIR NASHI ……………………………….…………..RESPONDENT
R U L I N G
Mr. Kenzi advocate for the landlord filed a suit in Chief Magistrate’s court claiming injunction against defendant and costs of the suit. The subject matter is some shop and butchery which the plaintiff claims are on his building. It is in the same premises that the landlord has issued a Notice to terminate tenancy under the provisions of Landlord and Tenant (Shops, Hotels and Catering Establishment Act Cap 301). It is not disputed that a suit has been filed in Business Tribunal.
Out of the proceedings in the subordinate court the applicant has filed an appeal against the ruling of the Learned Trial Magistrate on a Preliminary point on the issue of jurisdiction in the circumstances. There is no indication that this appeal is admitted.
However the appellant has filed this Motion seeking an order for Stay of the hearing of the said CMCC No.5079/2004 pending hearing of the appeal. Upon considering the matter, I am persuaded that unless Stay is granted the Appellant’s appeal will be reduced nugatory. Jurisdiction to deal with disputes premises under the Act (Cap.301) is conferred on the Business Rent Tribunal and I am inclined to venture to say that this appeal has good chance of success.
For the reasons above I allow application and grant orders sought with costs.
Delivered and dated at Mombasa this 15th Day of December 2005.
J. KHAMINWA
J U D G E
15/12/05
Mr. Gichana
Mr. Kenzi
Ruling read in their presence.
KHAMINWA, J