BENEDICT KILONZO MWENGA v PETER MUNUVE MWANGANGI & Another [2012] KEHC 1674 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Civil Appeal 657 of 2011 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><![endif][if gte mso 9]><xml>

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Editorial Summary

1. Civil Appeal

2. Civil Practice and Procedure

3. Subject of Tribunal case

BUSINESS PREMISES RENT TRIBUNAL

3. 1           Controlled tenancy

3. 2           Landlord/tenant relationship

3. 3           Notice by landlord to terminate tenancy for

non-payment of rent (Ksh. 595,000/-)

3. 4           Judgment of tribunal dated 25th November 2011.

tenant to vacate with effect 1st January 2012

3. 5           Landlord writes to tenant 2nd December 2012

that premises have been rented out with

effect from 1st January 2012. Tenant must

vacate before then.

3. 6           Tenant files appeal 20th December 2011

3. 7           Certificate of urgency seeking stay of

execution.

3. 8           Duty judge (vacation) allows interparte date

28th December 2011.

3. 9           Duty Judge (Odunga J) allows adjournment to

26th January 2012.

3. 10         Further dates 1st March 2012

3. 11         Application for stay of execution dated 20th December 2011

granted 5th March 2012.

3. 12         Condition:

i)             The deposit of Ksh. 500,000/- in form of banker’s

guarantee, insurance guarantee or joint account

two advocates.

ii)            Payment of monthly rent of Ksh. 30,000/-

iii)           In default likely to apply

3. 13         Landlord applies to seek orders of stay of execution set

aside on grounds of non-compliance of deposit of

Ksh. 500,000/- as security.

3. 14         The tenant fails to attend court at inter parte hearing.

3. 16         Hearing of application 7th June 2012 heard

exparte.

4. Application

7th June 2012

i)             Leave to have orders of 5th March 2012

(Stay of execution vacated.)

5. Held:

6. Case Law:

7. Advocates:

i)     S. Kamere instructed by M/s Kamere & Co Advocates for

appellant/respondent/tenant absent

ii)    N. Kitonga instructed by Nzamba Kitonga & Co Advocates for

respondent/applicant/landlord present

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CIVIL APPEAL NO. 657 OF 2011

BENEDICT KILONZO MWENGA …………………… APPELLANT/

TENANT

VERSUS

PETER MUNUVE MWANGANGI

PAULINA NGUMI MWANGANGI …….........………… RESPONDENTS

LANDLORD

(Being an appeal arising from the judgment of Hon. D Mochache – Chairperson Business Premises Rent Tribunal inl Case No. 881 of 2010 dated

25th November 2011 at Nairobi)

R U L I N G

Application to have orders of

Stay of Execution - vacated

Notice of Motion 7th June 2012

I.BACKGROUND

1. The background of this matter is contained in the ruling of this court delivered on the 5th March 2012.

2. The relationship of the parties is that of landlord/tenant. The premises are controlled and fall under the Business Premises Rent Tribunal jurisdiction. The chairperson of the tribunal ordered that the tenant do vacate the business premises for failure to pay the landlord’s rents. Being aggrieved, the tenant prayed to this High court but first prayed for orders of stay of execution during the Christmas vacation. The tenants was to vacate the premises as of 1st January 2012.

3. The court, after hearing the matter interparte allowed the application for stay of execution (Ang’awa J 5th March 2012) but on condition that the sum of Ksh. 500,000/- be deposited by way of bankers guarantee, insurance guarantee or cash in the joint names of the two advocates in an interest earning account.

4. The usual rent of Ksh. 30,000/- per month must be paid as usual.

5. Each party were at liberty to apply.

6. The tenant failed to return to court to apply for any change of terms – if he was in any difficulties. The landlady then made application to have the said orders vacated. It is this application dated the 7th June 2012 that is the subject of this ruling.

IIAPPLICATION 7TH JUNE 2012

7. On the day called out for hearing, the advocate for the tenant was absent. This matter proceeded exparte under Order 12 Civil Procedure Rules, as the advocate had taken consent date for the interparte hearing of this matter.

8. The application sought orders to set aside the stay of execution orders herein granted by this court. The grounds being that the tenant had failed to comply with the court’s orders. The deposit of Ksh. 500,000/- had not been made.

IIIOPINION

9. Should this court vacate the orders of stay of execution? The court noted that when the orders were given there was no time set of depositing the said sum of Ksh. 500,000/-, a time limit ought to have been set by this court.

10. I further note that the effect of setting aside the orders the orders of stay of execution would mean that if execution is effected, the tenant would be required to vacate the premises and thereby render the appeal of no use and purposes.

11. The rents are paid regularly. What the issue herein is that of security?

12. I would hereby order that the security provided by this court to be availed by the tenant of Ksh. 500,000/- be so provided within 90 days of today’s date.

13. That this case be mentioned in 90 days. And the parties convene to confirm compliance failure to, the execution orders for stay be lifted.

DATED THIS 4TH DAY OF MARCH 2012 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i)     S. Kamere instructed by M/s Kamere & Co Advocates for

appellant/respondent/tenant absent

ii)    N. Kitonga instructed by Nzamba Kitonga & Co Advocates for

respondent/applicant/landlord present