DAVID THIONGO T/A WELCOME GENERAL STORES V MARKET FANCY EMPORIUM [2012] KEHC 4472 (KLR)

Editorial Summary

1. Civil Appeal

2. Civil Practice and Procedure

3. Subject of Tribunal case

BUSINESS PREMISES RENT TRIBUNAL

3. 1           Landlord issues notice to terminate or alter

terms of tenancy 27th May 2004.

3. 2           Tenant fails to file a reference to the Tribunal

For purpose of hearing.

3. 3           Landlord executes termination orders in the

Magistrate’s courts RMCC 12611/04.

3. 4           Hon. Magistrate grants orders summary

Judgment for eviction of the appellant/tenant

(15th November 2005)

3. 5           Appellant/tenant filed appeal on 18th November 2005.

3. 6           Visram J on 28th February 2007 dismisses application

for stay of execution on grounds tenant failed to

file a reference to the tribunal.

3. 7           Tenant appeals to the Court of Appeal.

3. 8           Notice of motion application dismissed by Court

of Appeal for CA 47/07

Stay of execution Tunoi, Okubasu, Githinji JJA

30th March 2007.

3. 9           Application to court of Appeal for stay of

injunction against respondent pending hearing of

appeal of Visram J.

3. 10         Application CA 47/07 dismissed by Omolo, Waki,

Otieno JJA 11th June 2010.

3. 11         Appeal admitted to hearing 29th July 2009

Okwengu J

3. 12         No further action taken.

4. Application

16th February 2012

i)             Leave to have subordinate court file returned

to the subordinate court for purposes of

of execution.

5. Held:

Appeal to be heard.

Order 42 r 13(c) Civil Procedure Rules requires

File to be at the High Court.

6. Case Law:

7. Advocates:

i)     P Nyaosi instructed by M/s Mohammed Muigai & Co Advocates for

appellant/tenant

ii)    O. J Mituga instructed by Singh Gitau & Co Advocates for

respondent/landlord

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

MILIMANI LAW COURTS

Civil Appeal 914 of 2005

DAVID THIONGO T/A

WELCOME GENERAL STORES ……..........……………… APPELLANT/TENANT

VERSUS

MARKET FANCY EMPORIUM ………………….… RESPONDENT/LANDLORD

R U L I N G

I.INTRODUCTION

1. This matter has been in the court corridors since 2004.

2. It emanated from the Business Premises Rent Tribunal, whereby the landlord/respondent had filed a notice to terminate or alter the terms of tenancy on 27th May 2004. The tenant failed to file a reference to the tribunal for purpose of hearing.

3. The landlord exercised his rights and filed execution proceedings to terminate the orders in the magistrate’s courts RMCC 12611/04.

4. The Hon. Magistrate granted orders of summary judgment for eviction of the appellant/tenant (15th November 2005).

5. Being aggrieved, the tenant appealed to this High Court and filed an application 18th November 2008 seeking orders of stay of execution.

6. The Hon. Judge, on 28th February 2007 dismissed the application on grounds that the tenant failed to file a reference to the tribunal of his appeal was not there.

7. The tenant appealed to the Court of Appeal against the refusal to issue stay of execution orders by Visram J on 28th February 2007. The said Court of Appeal in Nairobi Civil application case 47/07 dismissed the application on 30th March 2007.

8. The appellant returned to the Court of Appeal within a second application seeking orders of injunction. The said application was dismissed by the Court of Appeal (CA 74/07) Omolo, Waki, Onyango Otieno JJA on 11th June 2010.

9. In the meantime, the appeal in the High Court was admitted to hearing on 29th July 2009 (Okwengu J) but had never been prosecuted. No further action on this file had been taken.

IIAPPLICATION 16THFEBRUARY 2012

10. The respondent/landlord by application of 16th February 2012 asked for the file to be returned to the subordinate court to proceed with the execution of a summary judgment having been entered. There is no stay of execution. This can only mean that there is nothing left in this matter.

11. In the alternative the court should issue orders of eviction.

IIIOPINION

12. The court herein has no mandate to issue orders of eviction, in the alternative. This is because the orders must be obtained from the hearing of the cause or appeal. The effect of there being no stay is to render the appeal nugatory.

13. The right to be heard no matter how hopeless, one would conclude a person’s case may be, is paramount.

14. This appeal has not been heard on grounds of parties being in and out of the Court of Appeal.

15. I would in the interest of justice order that the parties set this appeal for hearing at the most earliest and convenient time.

16. That the lower court file is required herein under Oder 42 4 134 (c) Civil Procedure Rules as part of the appeal hearing.

17. The application herein is declined.

DATED THIS 23RD DAY OF MARCH 2012 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i)               P Nyaosi instructed by M/s Mohammed Muigai  & Co Advocates for

appellant/tenant

ii)              O. J Mituga instructed by Singh Gitau & Co Advocates for

respondent/landlord