Charles Gitonga t/a Nyamachoma Hotel v Mulwa Commercial Agencies & Kenya African National Union [2021] KEBPRT 222 (KLR)

REPUBLIC OF KENYA

BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 83  OF 2019  (NYERI)

CHARLES GITONGA T/A NYAMACHOMA HOTEL.......................TENANT/RESPONDENT

VERSUS

MULWA COMMERCIAL AGENCIES.................................................AGENT/1ST APPLICANT

KENYA AFRICAN NATIONAL UNION.....................................LANDLORD/2ND APPLICANT

RULING

1.  Before me is a motion dated 8th March 2021 in which the Landlord and agent are seeking for stay of execution of the ruling delivered on 4th December 2020 and all consequential orders pending hearing and determination of Nyeri ELC Appeal No. 1 of 2021.

2.  By a ruling delivered on 4th December 2020, this Tribunal upheld a preliminary objection raised by the Tenant to the effect that the lease subject matter of the case was for a period of 20 years and had no termination Clause other than for breach of terms and conditions of the lease.  As such the Tribunal held that the tenancy was not controlled and proceeded to strike out the Landlord’s notice dated 30th July 2019 for being incompetent and granted costs of the reference to the Tenant.

3.  The application is premised upon order 42 role 6 of the Civil Procedure Rules on the basis that there was imminent danger of execution for costs in terms of the bill of costs dated 11th January 2021 which was initially scheduled for taxation on 16th March 2021.

4.  The application is supported by the  affidavit of David Mulwa Malamu sworn on 8th March 2021 and the grounds on the face thereof.

5.  The application is opposed through a replying affidavit of the Tenant sworn on 15th March 2021 which challenges the application on the grounds that the Applicants’ advocates are irregularly on record and that the Tribunal had no jurisdiction to issue the orders sought.

6.  It is also the Tenant’s case that the appeal had no  chances of success as the memorandum of appeal was filed out of time without leave of the appellate court.

7.  Finally, the Tenant deposes that the application was filed 4 months after the impugned ruling and no plausible reason was proffered for the unreasonable delay.

8.  The Applicants’ filed a supplementary affidavit sworn on 23rd March 2021 in response to issues raised in the replying affidavit.

9.  It is therein deposed that prior to delivery of the ruling, the Applicants had on 4th December 2020 filed a notice of intention to act in person.

10. I have perused the record and note that indeed a notice to act in person was filed on 4th December 2020 and the question of regularity of subsequent appointment of the current advocates is neither here nor there and shall not weigh my mind in considering the application before me.

11. I have looked at the pleadings and the submissions filed on behalf of the Tenant and the main issue for consideration is whether or not, a stay order ought to be granted in favour of the Applicants.

12. The principles considered in an application of this nature are well settled.  The court is supposed to consider whether substantial loss may result to the Applicant unless stay of execution is granted, whether the application is brought without undue delay and finally whether security for due performance of such decree as may ultimately be binding has been given by the Applicant.

13. In regard to the first consideration, the only danger that the applicants face is payment of Kshs.289,118/- yet to be taxed but claimed by the Tenant as costs vide his bill of costs dated 11th January 2021.

14. It has been held time without number that it is not normal in money decrees for the appeal to be rendered nugatory, if payment is made (see the judgment of Platt hg JA in Kenya Shell Limited – vs- Benjamin Karuga Kibiru & Another (1986) e KLR) at page 4/6).

15. The court of appeal went on to hold in the said case as follows:-

“if there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal could be rendered nugatory by some other event.  Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay……..without this evidence, it is difficult to see why the Respondents should be kept out of their money”.

16. Similarly in the case of James Wangalwa & Another – vs- Agnes Naliaka Cheseto (2021) eKLRwhile considering what substantial loss means, the court had the following to say:-

“No doubt, in law, the fact that the process of execution has been put in motion or is likely to be put in motion, by itself, does not amount to substantial loss.  Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under order 42 Rule 6 of the Civil Procedure Rules.  This is because execution is a lawful process.  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………..the issue of substantial loss is the cornerstone of both jurisdictions”.

17. I find and hold that the applicants have not demonstrated what substantial loss they will suffer if the Tenant recovers costs awarded in this case.

18. I further find that the delay of three (3) months before making the application is inordinate and inexplicable and the application fails on this test.

19. Finally, the Applicants have not offered any security for costs as required for the due performance of such decree as may ultimately be binding on him should his appeal fail.  The application again fails on this test.

20. As regards, the Tribunal’s  jurisdiction to make the orders sought, I find that on the authority of National Drycleaners Ltd and Another – vs- Ndune (1987) eKLR, this Tribunal has no jurisdiction to stay execution of its own orders of decrees.

21. I am further fortified in this regard by the decision on jurisdiction in the case of Owners of motor vessel “Lilian s” –vs- Caltex Oil (Kenya) Ltd (1989) eKLR where it was held that where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.  A court is supposed to put down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

22. I therefore hold that this Tribunal having found that it had no jurisdiction to entertain the proceedings instituted by the Applicants is not entitled to stay the decision which in any event is a negative order.

23. In the premises, the application dated 8th March 202 is hereby dismissed with costs to the Tenant.

It is so ordered.

DATED, SIGNED AND DELIVERED THIS 24TH DAY OF SEPTEMBER 2021 VIRTUALLY.

HON. GAKUHI CHEGE

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:-

GICHUHI FOR LANDLORD/APPLICANT

NO APPEARANCE FOR THE TENANT