[2014] KEHC 7108 (KLR)
The court found that the applicant failed to demonstrate that he would suffer substantial loss if the stay of execution was not granted. The mere fact that the applicant might pay a higher rent pending appeal does not constitute substantial loss, as any overpayment can be refunded or credited as advance rent should...
Source-derived case information.
- Citation
- [2014] KEHC 7108 (KLR)
- Parties
- Appellant: Stephen Atallo Nyamanga; Respondent: Anchor Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 100 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- DA Onyancha
- Legal Topics
- Stay of Execution, Business Premises Rent Tribunal, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Atallo Nyamanga
Appellant
Anchor Investments Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether the applicant has demonstrated that he will suffer substantial loss if stay is not granted.
- 3 Whether the application for stay was made without undue delay.
Ratio Decidendi
The court found that the applicant failed to demonstrate that he would suffer substantial loss if the stay of execution was not granted. The mere fact that the applicant might pay a higher rent pending appeal does not constitute substantial loss, as any overpayment can be refunded or credited as advance rent should the appeal succeed. The application was made within a reasonable time and security was offered, but the core requirement of substantial loss was not satisfied. The Tribunal's valuation was deemed reasonable in the absence of a credible alternative from the applicant. Consequently, the application for stay of execution was dismissed as unmerited.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NUMBER 100 OF 2013
STEPHEN ATALLO NYAMANGA. ................... APPLICANT/APPELLANT
VERSUS
ANCHOR INVESTMENTS LIMITED. ................................ RESPONDENT
R U L I N G
The application before the court is the Notice of Motion dated 19th March, 2013 filed by the appellant herein. The application seeks mainly a stay of execution pending the final determination of the appeal.
The facts show that the appellant is the tenant of the Respondent in Flat No. 38(N) on L.R. No. 1/822, Nairobi. He paid rent of Ksh.25,000/- until 8th February, 2013 when the Business Premises Rent Tribunal, on the Landlord’s application ruled that the rents, based on fresh valuation shall be ksh.41,000/- per month, with effect from the date the Reference to the Tribunal was made. These findings aggrieved the Tenant who as a result filed this appeal.
In this application for a stay of execution, an interim order of stay was granted on condition that the applicant/appellant continues to pay the undisputed monthly rent of Ksh.25,000/- with a further order that the Appellant do deposit in court Ksh.144,000/- which was the possible, arrears then unpaid being the difference between the ordered new rent of Ksh.41,000/- and the old rent ofKsh.25,000/-.
It is trite law that a stay of execution is generally granted if the applicant satisfies that a substantial loss may result to him unless the order is made and that not only was the application itself timeously made but that a proper security was offered by the applicant.
I have observed that this application was made within five or so weeks after the Tribunal’s order was made. I find no much delay in that period considering that the prescribed time for appeal from the Tribunal is four weeks.
The issue of great importance in this case is the one as to whether the applicant/Appellant in this case is likely to suffer a substantial loss if the stay is not granted. It is not in dispute that execution, if one was not stopped from taking place, would simply force the appellant to pay the new rent of Ksh.41,000/- per month – an extra Ksh.16,000/- until the appeal is determined. How would such higher monthly rent cause substantial loss to the Appellant if he wins the appeal and the monthly rent remains at Ksh.25,000/- per month? The court’s view, is that all that may happen is that the Appellant will have overpaid the rents. Such overpaid rents can be ordered refunded to the Tenant within a prescribed period. On the other hand, the court can calculate the overpaid rents to be advance rents for the tenant, while probably taking into account the element of interest, if material.
To put it differently, the applicant in this case has not demonstrated that if the stay of execution sought herein is not granted he will stand to incur substantial loss. He failed to show that the respondent will not either refund the then overpaid rent or will not to give proper credit for the overpaid rent as advance rents.
The court further observes that the Appellant’s proposal for the possible new rent arising from a proper present valuation of the occupied premises were ruled as unreliable or poorly done. The Appellant accordingly, gave no alternative proposal for new and up to date rents for the premises. The Tribunal and this court until the appeal is argued accordingly look at the Tribunal’s findings as the most reasonable probable proposal for the new rents.
The end result is that the court finds this application for stay of execution as unmerited and dismisses it with costs. Orders accordingly.
Dated and delivered at Nairobi this 6th day of February 2014.
..................................................
D A ONYANCHA
JUDGE