[2013] KEHC 1312 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 23 OF 2013

MOHAMED NAZIR JANMOHAMED &

FAISAL AMIN JAN MOHAMED

T/A DUNIYA FORWARDERS ….......................APPELLANTS

VERSUS

SHAMI TRADING CO. LTD. ………............…RESPONDENTS

RULING

By way of a Notice of Motion application dated the 1st of March, 2013 and which is expressed to be brought under order 42 rule 6(1) and (2) and section 3A of the Civil Procedure Act and Rules the applicant seeks a stay of execution of the Judgment delivered in BPRT Case No. 125 and 132 of 2012 (Consolidated) on the 15th day of February, 2013.

The grounds being that the tribunal has ordered eviction of the Tenant from the suit premises with effect from 16th March, 2013.

Secondly that the tenant will suffer irreparable loss and will lose his place of business if the landlord executes the order for vacant possession.

Thirdly, that the tenancy has existed for 30 years and if they vacate they will lose their client base and goodwill.

That the appeal has good chances of success and it will be rendered nugatory if stay is not granted and that in its Judgment the Court wrongly consolidated two files 125 of 2012 and No. 132 of 2012.

The Respondent in his replying affidavit depones that there is no proper appeal before the court as the Respondents Tenant is one Feizal Amin Jan Mohamed T/A Duniya Forwarders and the deponent of the supporting affidavit one Mohamed Nasir Jan Mohamed is a stranger to the landlord as the Tenant has always been Feizal Amin Jan Mohamed T/A Duniya Forwarders even prior to purchasing the property. Thereafter after the purchase of the property the tenant remained the same. There are attached in support annextures marked “A” a notice, reference and order in BPRT No. 98 of 2010 Feizal Amin Jan Mohamed –Vs-

Mombasa Tobacco Wholesalers Ltd. “B” Complaint filed by the tenant as recent as 2012 in BPRT 252 of 2012 Feizal Amin Jan Mohamed T/A Duniya Forwarders – Vs- Shami Trading Ltd. Annexture “C” BPRTC No. 124 of 2012 Feizal Amin Jan Mohamed T/A Duniya Forwarders –Vs- Shami Trading Company Ltd.

From the outset its noted that BPRT No. 125 and 126 of 2012 were consolidated and the primary/control file was indicated as No. 126 of 2012. However, the appellant has filed two appeals in this court being Civil Appeal No. 23 of 2013 and 27 of 2013.

It is also noted as alleged by the Respondent that one Mohamed Nazir Jan Mohamed who is the deponent of the affidavit in support of the motion was not shown as a party in the matters in the BPRTC proceedings from where the consolidated appeal arises from.

Counsel for the appellants submits that there is no entity in existence known as Feizal Amin Jan Mohamed T/A Duniya Forwarders and the fact that notices were served in this name only makes them defective and that this is an issue for determination in the appeal. That the appeal has been filed in the true name of the tenant affected by the orders of the lower court and this regularizes the proceedings and it in no way prejudices the Respondent.

Further that Mohamed Nasir Jan Mohamed did testify in the lower court. It is also the contention by counsel for the applicant that the stay of execution sought is in respect of the Judgment delivered by the Business Premises Rent Tribunal in cases No. 125 of 2012 and 126 of 2012 which were consolidated but in the Judgment case No. 125 of 2012 had been consolidated with 132 of 2012 and that the applicant is a stranger to case No. 132 of 2012.

A perusal of the matters before the Business Premises Rent Tribunal case Nos. 125 of 2012 and case No. 126 of 2012, the tenant is shown as Feizal Amin Mohamed and the landlord as Shami Trading Co. Ltd.

At the Business Premises Rent Tribunal no objections were raised by the 2nd Appellant about the validity of notices and the cases proceeded to hearing and determination. This sis not the correct forum for arguing that the notices were not valid.

It is argued that there is no entity in existence known as Feizal Amin Jan Mohamed T/A Duniya Forwarders. This is the

person shown as the Tenant in the lower court. This was probably the first issue that should have been addressed in the lower court.

The inclusion of Mohamed Nazir Jan Mohamed is said to regularize the proceedings.

The proceedings should have been regularized in the lower court but not in the appellate court. Such regularization may include additional evidence in terms of annextures of certificates and or other documentary evidence which may destroy the character of the case which was before the lower court and the substratum upon which the appeal is grounded.

It is trite law that as a general rule a court ought to exercise its best discretion in a way so as not to prevent the appeal if successful from being nugatory. Civil Appeal No. 6 of1979 Nairobi Court of Appeal H M Butt – Vs- The Rent Restriction Tribunal.

I have anxiously gone through this application for stay and as argued supra it has its fair share of defects which go to the roof of the appeal.

The application has no merit and its dismissed with

costs. This ruling and order applies mutatis mutandis to Civil Appeal No. 23 of 2012.

Ruling delivered dated and signed in open court this 5th day of November, 2013.

….....................

M. MUYA

JUDGE

5TH NOVEMBER, 2013

In the presence of:-

Miss Moolraj for the appellant

Miss Ali for the Respondent

Court clerk Musundi

M. MUYA

JUDGE

5TH NOVEMBER, 2013

Miss Moolraj for the appellant:

I seek a temporary stay for fourteen (14) days so as to appeal. We are also asking for certified copies of the proceedings.

Ali:

I will object to the prayer for fourteen (14) days. The objection is on the grounds that they may not have the jurisdiction to appeal. I pray that a formal application be made so that we can reply to that application. Seeking for fourteen (14) days is not regular.

That should not be a reason to grant a stay. There is no further appeal from the High Court. We are asking for a chance to respond.

Miss Moolraj:

We have no problem with filing a formal application. Thats why we are requesting for fourteen (14) days. Section 15 of Cap 301. This concerns an appeal that has been heard by the High Court. In the situation the appeal has not been heard by the High Court. We ask for fourteen (14) days.

Thats all.

M. MUYA

JUDGE

5TH NOVEMBER, 2013

Court:

A formal application to be made within fourteen (14) days. Stay for fourteen (14) days granted.

….....................

M. MUYA

JUDGE

5TH NOVEMBER, 2013.