S. M. MURAIMU vs JOHN MWANGI [2003] KEHC 861 (KLR)
- Citation
- [2003] KEHC 861 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- A. Ong’injo
- Case number
- ? 139 of 2001
- Language
- English
More details
- Court
- High Court
- Panel
- A. Ong’injo
- Case number
- ? 139 of 2001
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the rent increment imposed by the Tribunal was sharp and that the appellants had an arguable appeal. The court held that it has a duty to ensure the appellants are given a fair opportunity to prosecute their appeal without suffering undue hardship. The balance of convenience was found to favour the appellants, as requiring payment of the new rent before the appeal is determined would be unfair. However, the appellants are still obligated to pay rent at the old rates. The court therefore granted the stay of execution on condition that all rent arrears at the old rates be deposited in court within 60 days for onward transmission to the respondent. Costs were ordered to be in the cause.
Court disposition
application granted
Orders
- Stay of execution of the Tribunal's order increasing rent is granted pending determination of the appeal.
- Applicants to deposit all rent arrears at the old rates to the court within 60 days for onward transmission to the respondent.
- Rents to be calculated at the old rates before the Tribunal's increment.
- Costs in the cause.
02
Material facts
Parties
S. M. Muraimu
Appellant Counsel: Ms NjorogeDr. Mburu t/a Gilgil New Traders
Appellant Counsel: Ms NjorogeJohn Mwangi
Respondent Counsel: Mr. RodiAmounts and remedies
- Old Rent for 1st Applicant (monthly): KES 1,500
- Old Rent for 2nd Applicant (monthly): KES 1,500
- Increased Rent for 1st Applicant (monthly): KES 4,000
- Increased Rent for 2nd Applicant (monthly): KES 4,100
- Tribunal Imposed Rent (monthly): KES 9,400
03
Procedural history
Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
04
Questions and positions
Legal issues
- 01
Whether the appellants are entitled to a stay of execution of the Tribunal's order increasing rent pending determination of the appeal.
- 02
Whether the balance of convenience favours granting a stay to prevent hardship to the appellants.
- 03
Whether the appellants should continue paying rent at the old rates pending appeal.
Party arguments
- Applicant
- The appellants argue that the respondent is threatening to attach their movable property and/or commit them to civil jail for non-payment of increased rent. They claim to have paid rent on time at the old rates and that the Tribunal's increment is unconscionable and excessive, especially given the age and condition of the building. They assert that the appeal has high chances of success and that it is unfair to demand payment of the new rent before the appeal is heard.
- Respondent
- The respondent contends that the appellants have not paid any rent since July 2001 and that there has been inordinate delay in filing the application, which is being prosecuted three years after judgment. The respondent maintains that the building is in fair condition and comparable premises fetch similar rents. He argues that the appellants will not suffer if the stay is not granted and that the appeal will not be rendered nugatory without the orders sought.
05
Court’s reasoning
Legal principles
- 01
Order XXI Rule 22 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act
A stay of execution may be granted where the applicant demonstrates an arguable appeal and that the balance of convenience favours the applicant.
- 02
Judicial discretion under Civil Procedure Rules and established case law on stay of execution
Applicants seeking stay must continue to fulfill their obligations, such as payment of rent at the old rates, pending determination of the appeal.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the rent increment imposed by the Tribunal was sharp and that the appellants had an arguable appeal. The court held that it has a duty to ensure the appellants are given a fair opportunity to prosecute their appeal without suffering undue hardship. The balance of convenience was found to favour the appellants, as requiring payment of the new rent before the appeal is determined would be unfair. However, the appellants are still obligated to pay rent at the old rates. The court therefore granted the stay of execution on condition that all rent arrears at the old rates be deposited in court within 60 days for onward transmission to the respondent. Costs were ordered to be in the cause.
Obiter and limits
- The increment of rent was rather sharp and obviously, the applicants have an arguable appeal.
- The court has a duty to grant the applicants a fair opportunity to proceed with the appeal.
- Applicants are still under obligation to pay the old rents till the appeal is determined.
Court disposition
application granted
- Stay of execution of the Tribunal's order increasing rent is granted pending determination of the appeal.
- Applicants to deposit all rent arrears at the old rates to the court within 60 days for onward transmission to the respondent.
- Rents to be calculated at the old rates before the Tribunal's increment.
- Costs in the cause.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 139 OF 2001
S. M. MURAIMU ………………………………………...1ST APPELLANT
DR. MBURU T/A GILGIL NEW TRADERS……………2ND APPELLANT
VERSUS
JOHN MWANGI……………………………………………RESPONDENT
RULING
This Ruling relates to an application brought through Chamber summons under Order XXI R. 22 of the Civil Procedure Rules (Revised) S. 3(A) of the Civil Procedure Act and all enabling provisions of the law. The application seeks the following order:
- That the Orders for stay granted and extended to 14th March, 2002 be extended until the hearing and determination of this appeal. The application is grounded on the following:
(a) That the respondent/landlord is threatening to attach the appellant’s movable property and/or commit the appellants to civil jail.
(b) That the applicants have been paying their rents on time but the Respondent is insisting on the new rents given by the Tribunal which is subject matter of appeal.
(c) That the appeal is yet to be heard and determined and it would be unfair at this stage to demand payment of the new rents before the finalisation of the appeal or hearing of the application interparties.
(d) The grounds contained in the affidavit of Symon Muraimu and Dr. David Ndungu Mburu and other grounds to be adduced at the hearing.
The above application has been supported by the affidavit of one Symon Muraimu on behalf of both appellants. According to Ms Njoroge for the applicants, her clients have stayed on the suit premises since 1974. She complained that in 1998, the rent for the 1st applicant was increased from Kshs.1,5000 to Kshs.4,000. On the other hand, the rent for the 2nd applicant was increased from kshs.1,500 to kshs.4,100.
When the parties appeared in the Business Premises Tribunal – they were allowed to submit their Valuation Reports. Consequently, the Tribunal increased the rent to Kshs.9,400 Ms Njoroge described the increment as unconscionable and inordinately high. Besides the above, she also submitted that the building is old and hence the current rent is not merited.According to her, the appeal has high chances of success.
On the other hand, the respondent has opposed the application and has relied on the replying affidavit on the file. The respondent’s counsel viz, Mr. Rodi has complained that since the judgment was delivered, the applicants have not paid their rents from July, 2001.
Secondly, Mr. Rodi also complained that there has been inordinate delay in filing the application which is being prosecuted after 3 years. He further submitted that the state of the building was described as fair and that similar buildings within the locality fetch rents from Kshs.9,000 upto Kshs.10,000. According to Mr. Rodi, the applicants will not suffer if the application is not granted. He also added that the appeal shall not be rendered nugatory if the orders being sought are not granted.
This Court has carefully perused the submissions and the respective affidavits on record. Without prejudice, the Court hereby notes that the increment of rent was rather sharp – and obviously, the applicants have an arguable appeal. That also means that the Court has a duty to grant the applicants a fair opportunity to proceed with the appeal.
Despite the above, the applicants are still under obligation to pay the old rents till the appeal is determined. The total circumstances of this case dictates that the balance of convenience is in favour of the applicants.
The upshot is that the application is hereby granted. In the meantime, the applicants are hereby ordered to deposit all the rent arrears to the Court within 60 days for onward transmission to the respondent. These rents will be calculated at the old rates before the Tribunal imposed new rents. Costs in the cause.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in open Court in the presence of Mr. Mariti for Ms Njoroge for applicants.
MUGA APONDI
JUDGE
13TH NOVEMBER, 2003
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