[2022] KEHC 13985 (KLR)

Mwangi v Tabo & another (Civil Appeal E126 of 2021) [2022] KEHC 13985 (KLR) (Commercial and Tax) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13985 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Appeal E126 of 2021

A Mabeya, J

October 14, 2022

Between

Patrick Maina Mwangi

Tenant

and

Francis Otira Tabo

1st Respondent

Abukar Yusuuf Mahamud

2nd Respondent

Ruling

1. Before court are two applications by the applicant. The first one is dated December 24, 2021 and the second one January 12, 2022.

2. The first application was brought inter-aliaunder section 15 of cap 301, Laws of Kenya. In it, the applicant sought to restrain the respondents, in particular the 2nd respondent from interfering with his quiet use and enjoyment of the suit premises being shop number 1 on ground floor of Salama Hotel Building on L.R No.209/400, Luthuli Avenue, Nairobi and that the OCS Central Police Station to ensure compliance thereof.

3. The grounds were that; the applicant is a tenant pursuant to an oral agreement entered into in June 2019. The 2nd respondent had ordered the applicant to vacate the suit premises by 30/9/2021 failure to which he would evict him. On 27/9/2021, the Business Premises Rent Tribunal (“the Tribunal”) issued the applicant with restraining orders which enabled him to remain in situ without disturbance from the respondents.

4. The applicant pays a monthly rent of Kshs.430,000/- per month which had been paid in full until September 2022. The Tribunal delivered its ruling on December 24, 2021 and dismissed the applicant’s for injunction and was now exposed to eviction.

5. The applicant pleaded that his appeal has high chances of success and shall be rendered nugatory if the orders sought are not granted.

6. The 2nd respondent opposed the application vide his replying affidavit sworn on 7/1/2022.

7. He averred that the suit property was leased out to one Ezekiel Karanja vide a lease dated November 14, 2014. That he agreed with the 1st respondent that the applicant would only use the premises for 2 years. The lease is in the name of the 2nd respondent and the applicant is a stranger to the contents of the lease.

8. That the applicant was only meant to conduct business on the premises for a period of 2 years from June 2019 to June 2021. However, in a strange twist of events, the applicant filed the present application together with a reference which is still pending before the Tribunal. On December 24, 2021, the Tribunal found that the 2nd respondent was the rightful lessee to the suit premises.

9. The 2nd respondent averred that as of 29/9/2021, when the court issued orders, it had already taken possession of the suit premises; that contrary to the applicant’s assertions, he has not paid any rent due and has not provided any evidence of the same. That the reference was filed in bad faith and was meant to deny him the opportunity to use the suit premises.

10. The 1st respondent lodged a replying affidavit sworn on 17/1/2022 in support of the first application.

11. He averred that, he and the 2nd respondent orally sublet the suit premises to the applicant due to a partnership agreement between him and the 2nd respondent dated November 14, 2014. The agreement was to operate tenancy business on the strength of a lease agreement between him and the landlord in respect of the suit premises. That the 2nd respondent never entered into any lease agreement with the landlord. That the applicant was a periodical tenant with no term.

12. It was averred that the orders granted by the Tribunal in respect to validity of the lease is a nullity as they were given in excess of jurisdiction.

13. The 2nd respondent swore a further affidavit on 8/2/2022 in response to the 1st respondent’s replying affidavit mentioned above.

14. He averred that he has a valid lease with the lessor dated 14/11/2014. That the advocate who drafted the said lease agreement now represents the applicant in contesting the same which shows a serious conflict of interest.

15. This is an application for a stay of execution pending appeal which is succinctly provided for under Order 42 Rule 6 of the Civil Procedure Rules2010.

16. The court will consider the first limb which is whether the applicant is likely to suffer substantial loss.

17. The applicant averred that he will suffer substantial loss if the stay is not granted as it has heavily invested in the suit premises. That since the Tribunal dismissed its application for a restraining order it is exposed to eviction as threatened and that the intended appeal will be rendered nugatory if the orders sought are not granted. The applicant further averred that he had already paid a monthly rent for the year at the rate of Kshs.430,000/- per month which rent was admittedly received by the 1st respondent.

18. On the other hand, the 2nd respondent averred that the applicant has not adduced any evidence of payment of rent nor the existence of a lease agreement with the latter.

19. In Mukoma v Abuoga (1998) KLR 645, it was held that:-“Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

20. On December 25, 2021, the Tribunal made a finding that the 2nd respondent is the rightful lessee and should thus be free to enjoy the lease quietly and peacefully in respect of which he pays rent to the head lessor.

21. The applicant, being dissatisfied with this decision, now seeks a stay of its execution pending an appeal before this court.

22. The applicant has not shown that he paid rent amounting to Kshs.430,000/- per month for a one year period as alleged nor has he provided a lease agreement for the suit premises.

23. To the contrary, the 2nd respondent has provided a stamped lease between him and the landlord of the premises. This was the basis of the Tribunal’s finding in his favor. Further, the applicant did not prove the sort of improvements he had undertaken. He never denied the averment that his tenancy was restricted for two years which had since lapsed.

24. Based on the above facts, the court is unable to decipher how the applicant will suffer substantial loss if the stay of execution is not granted.

25. The second limb deals with whether the application has been made without unreasonable delay.

26. As noted above, the Tribunal made its decision on December 24, 2021 and the present application seeking its stay of execution pending an appeal was filed on December 24, 2021. Therefore there was no delay.

27. On security for the due performance of such decree or order as may ultimately be binding on the applicant, the court finds that there is no need to order for the same as the applicant has failed on the substantial loss limb.

28. In the premises, the court finds the application dated December 24, 2021 to be without merit and dismisses the same with costs.

29. The second application was also lodged by the applicant seeking that the court does pronounce itself on the status quo orders issued on December 28, 2021 as of 10:32am. In view of what the court has held in respect of the first application, there arises no need to delve into the second application as the same has been overtaken by events.

30. Accordingly, both applications are dismissed with costs.

It is so ordered.

DATED AND DELIVERED* AT NAIROBI THIS 14TH DAY OF OCTOBER, 2022. A. MABEYA, FCIArbJUDGE