[2022] KEHC 585 (KLR)

William v Mugi & another (Miscellaneous Application E584 of 2021) [2022] KEHC 585 (KLR) (Civ) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 585 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E584 of 2021

JK Sergon, J

May 6, 2022

Between

Daniel Mumo William

Applicant

and

Teresiah Waithira Mugi

1st Respondent

Goldland Estates Agencies Limited

2nd Respondent

Ruling

1. The appellant/applicant in this instance has brought the Notice of Motion dated 17th September 2021 supported by the grounds set out in its body and the facts stated in the affidavit of Daniel Mumo William. The applicant sought for the substantive order for stay of execution of the ruling/order delivered on 27th August, 2021 in Nairobi BPRT NO. 162 of 2020 and other subsequent orders pending the hearing and determination of the appellant’s Appeal.

2. In opposing the said Motion, the 1st respondent filed the replying affidavit dated 29th October 2021, to which Daniel Mumo William rejoined with her supplementary affidavit sworn on 22nd November, 2021 followed by the further affidavit sworn by Daniel Mumo William on 9th December, 2020.

3. When the Motion came up for interparties hearing before this court, the parties filed and exchanged written submissions.

4. I have considered the grounds laid out on the body of the Motion;the facts deponed in the affidavits supporting and opposing the Motion; and the rival submissions and authorities cited therein.

5. A brief background of the matter is that according to the provisions of a 10-year lease agreement between the applicant and the 1st respondent, the applicant is a tenant of the 1st respondent in the suit premises kjd/kaputiei North/3121. The applicant owns and maintains a motor garage on the demised premises, which he rents for Kshs.50,000/= per month.

6. On the 12th of February, 2021, the applicant filed a reference with the Business Premises Rent Tribunal in Nairobi to prevent the respondents from evicting him from the suit premises after it became clear that the respondents were seeking a non-existent rent and interfering with his tenancy.

7. A ruling was delivered on 27th August, 2021 by the vice chair of the Business Premises Rent Tribunal which dismissed the applicant’s application which sought to restrain the respondents from evicting him from the suit premises. Being aggrieved by the aforementioned decision, the applicant appealed to this court against the tribunal’s ruling.

8. The guiding provision in considering an application seeking an order for a stay of execution is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the following conditions in determining an application for stay:a)The application should have been brought without unreasonable delay;b)The applicant must demonstrate the substantial loss to be suffered; andc)There must be provision of security for the due performance of the decree or order being appealed against.

9. On the first condition, the applicant avers and submits that the Motion has been timeously filed. From my study of the record and the impugned ruling, I note that it was delivered on 27th August, 2021 which is barely one (1) month prior to the filing of the instant Motion. I therefore find that there has been no unreasonable delay in bringing the Motion.

10. Under the second condition on substantial loss, it is apparent from the Motion that the applicant is anxious that if the respondents were to forcefully gain access into the suit premises for purposes of evicting him, he will suffer great prejudice and loss since there are a number of vehicles belonging to customers which are grounded and undergoing repairs.

11. In the Court of Appeal in the case of Butt v Rent Restriction Tribunal[1979] eKLR when it held that in considering an application for a stay of execution, the courts ought to exercise their discretion in a manner that will not render the appeal in question nugatory, if successful.

12. The 1st respondent is of the view that the applicant was served with a notice of termination of lease which took effect on 1st May 2021 and since no reference was filed against the said notice within the required time and therefore the 1st respondent should be allowed to get vacant possession of the suit premises.

13. In the case of Masisi Mwita v Damaris Wanjiku Njeri [2016] eKLR in which the court reasoned that:“The corner stone of the jurisdiction of the court under Order 42 of the Civil Procedure Rules is that substantial loss would result to the applicant unless a stay of execution is granted… The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal.”

14. The applicant avers that the respondents are likely to begin efforts to attach customers' motor vehicles that are currently undergoing repair work within the suit premises, ostensibly to recover alleged rent arrears that are not owed, and the applicant is likely to face a slew of lawsuits from clients whose vehicles will be towed away by the respondent's agents for auctioning to recover the alleged arrears.

15. I am satisfied that the applicant has reasonably demonstrated the manner in which it stands to suffer substantial loss.

16. A perusal of the memorandum of appeal shows that the applicant is appealing against the ruling and order of the tribunal in which the vice chair proceeded to determine the applicant’s complaint in its entirety through an application thus denying the appellant the opportunity to ventilate his case through oral evidence and on its merits.

17. I am also alive to the reality that unless the applicant is granted an opportunity to defend its case, it stands to be condemned unheard, thereby undermining the dictates of substantive justice and violating the applicant’s constitutional right to be heard on its defence in the dispute before the same is conclusively determined.

18. In Harit Sheth Advocate -vs- Shamas Charania – Civil Appeal No. 68 of 2008, this Court held:-“The principal aims of the overriding objective include the need to act justly in every situation; the need to have regard to the principle of proportionality and the need to create a level playing ground for all the parties coming before the courts by ensuring that the principle of equality of arms is maintained and that as far as it is practicable to place the parties on equal footing.”

19. In the end therefore, the Motion dated 17th September, 2021 is found to be meritorious and it is allowed, therefore giving rise to a grant of the following orders:i.There shall be a stay of execution of the Ruling/order of the Business Premises Rent Tribunal delivered on 27th August ,2021 in Nairobi BPRT No.162 of 2020 pending the hearing and determination of the appeal.ii.Costs of the Motion to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. ........................J. K. SERGONJUDGEIn the presence of:...................... for the Applicant...................... for the 1st Respondent.................................... for the 2nd Respondent