[2016] KEELC 708 (KLR)
The court found that, despite the respondent's objections regarding jurisdiction and alleged forum shopping, it retains unfettered discretion to grant or refuse a stay of execution pending appeal. The court noted that granting a stay is necessary to preserve the subject matter of the intended appeal and prevent it...
Source-derived case information.
- Citation
- [2016] KEELC 708 (KLR)
- Parties
- Applicant: Umra Limited t/a Malindi Supermarket; Respondent: Mohamed Swaleh Hemed
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 18 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application allowed with conditions
- Judges
- OA Angote
- Legal Topics
- Landlord and Tenant Disputes, Stay of Execution, Jurisdiction of High Court, Security for Rent Arrears
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Umra Limited t/a Malindi Supermarket
Applicant
Mohamed Swaleh Hemed
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to grant a stay of distress for rent pending appeal from the Tribunal's decision.
- 2 Whether the applicant is entitled to a stay of distress pending the hearing and determination of the intended appeal.
- 3 Whether the applicant complied with statutory requirements for filing an appeal under Section 15(1) of Cap 301.
Ratio Decidendi
The court found that, despite the respondent's objections regarding jurisdiction and alleged forum shopping, it retains unfettered discretion to grant or refuse a stay of execution pending appeal. The court noted that granting a stay is necessary to preserve the subject matter of the intended appeal and prevent it from being rendered nugatory. However, the court imposed conditions to balance the interests of both parties: the applicant must deposit Kshs.1,000,000 as security for rent arrears within 30 days, and must prosecute the appeal within 120 days. Each party is to bear its own costs. The court did not make a conclusive finding on whether the memorandum of appeal was filed within the...
Court Disposition
application allowed with conditions
Orders
- The applicant shall deposit Kshs.1,000,000 in court as security for any rent arrears that may be found due and owing within 30 days pending the hearing and determination of the appeal.
- The applicant shall prosecute the appeal within 120 days from the date of this ruling.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC MISC. APP. NO. 18 OF 2015
UMRA LIMITED T/A MALINDI SUPERMARKET.........................................APPLICANT
=VERSUS=
MOHAMED SWALEH HEMED.....................................................................RESPONDENT
R U L I N G
1. In his Application dated 22nd June, 2015, the Applicant is seeking for the following orders:-
(a) THAT a stay of any distress and or further proceedings do issue pending the hearing and determination of an intended appeal.
(b) THAT costs be in the cause.
2. The Applicant has deponed that on 12th May, 2015, the Respondent demanded a sum of Kshs.1,094,000 as rent arrears based on a disputed monthly rent of Kshs.109,400 up from Kshs.7,000; that on 14th May, 2015, it moved this court in HCCC No. 12 of 2014 and the court issued an injunction and that on 19th June, 2015, the Honourable Chairman dismissed the claim in the Tribunal.
3. The Applicant has deponed that having been aggrieved by the determination of the Tribunal, it intends to appeal and that unless the orders being sought herein are granted, the Respondent will levy distress.
4. In response, the Respondent deponed that the subject of the appeal herein is the Tribunal's Ruling in BPRT No. 94 of 2013 in regard to the complaint dated 7th August, 2013; that the orders being sought herein are contrary to the provisions of Section 15; that the High Court does not have jurisdiction to grant a stay order pending appeal which would stop a legal and valid distress based on a valid notice and that the Appellant herein is forum shopping for the court that will grant him the orders he is seeking.
5. The Respondent finally stated that it is his right as a landlord to levy distress on a notice that has taken effect and that the rent arrears now stand at Kshs.2,516,000.
6. The parties' advocates filed their respective submissions and authorities which I have considered.
7. The Applicant is seeking for a stay of distress pending the hearing and determination of an intended appeal.
8. The intended appeal is in respect of a decision of the Chairman in Tribunal Case No. 94 of 2013 – Mombasa. In that case, the Chairman dismissed the Applicant's reference dated 7th August, 2013 on 19th June, 2015.
9. The Applicant filed this claim on 23rd June, 2016 and annexed on its Application an unfiled and undated Memorandum of Appeal.
10. It is not clear to me if the Applicant eventually filed the Memorandum of Appeal within 30 days pursuant to the provisions of Section 15 (1) of the Landlord and Tenant (Shops, Hotels, Catering establishments) Act, Cap 301.
11. The Respondent has opposed the Application on the ground that the Applicant has filed numerous suits with the intention of defeating its efforts to distress for rent, to wit, CMCC NO. 49 of 2013, CMCCC no. 208 of 2013 and HCCC No. 12 of 2014.
12. Counsel has also submitted that the current Application is contrary to the provisions of Section 15(1) of the Act because appeals on to this court must arise from a reference; that there was no reference that was filed by the Applicant and that the Applicant only filed a complaint and therefore does not have a right of appeal.
13. It is trite law that this court can grant to the Applicant a stay of execution pending appeal so as not to render the intended appeal nugatory.
14. Considering that the Respondent has raised the issue of numerous suits that have been filed by the Applicant, and in view of the unfettered discretion of the court to grant or refuse to grant the orders being sought, I shall allow the Applicant's Application on the following conditions:-
(a) The Applicant to deposit in this court Kshs.1,000,000 being security for any rent arrears that may be found due and owing within 30 days pending the hearing and determination of the appeal.
(b) The Applicant to prosecute his appeal within 120 days from the date of this Ruling.
(c) Each party to bear his/its own costs.
Dated, signed and delivered in Malindi this 14thday of July, 2016.
O. A. Angote
Judge