James Mwaura Karobia t/a Daylight General Canteen v Julius Mwangi Kuria t/a Nationwide Distributors; Post Master General Postal Corporation of Kenya (Interested Party) [2021] KEELC 3765 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND LAND COURT

AT THIKA

ELC MISC APPLICATION NO. 27 OF 2020

JAMES MWAURA KAROBIA T/A DAYLIGHT GENERAL CANTEEN......................APPLICANT

VERSUS

JULIUS MWANGI KURIA T/A NATIONWIDE DISTRIBUTORS.............................RESPONDENT

THE POST MASTER GENERAL  POSTAL CORPORATION OF KENYA...INTERSTED PARTY

RULING

The matter for determination is the Notice of Motion Applicationdated 24th August 2020, by the  Applicant seeking for orders that;

1.  That the Applicant  be granted leave  to appeal out of time against  the Ruling of the Chairman , Business Premises  Rent Tribunal, Mbichi  Mboroki, in Tribunal case  Number  73 of 2016 (Kiambu) delivered  on 12th June  2020, without Notice  to the Applicant herein.

2. That a Stay of Execution in Tribunal Case No. 73 of 2016(Kiambu) be granted pending the hearing and determination  of this intended Appeal  if leave is so granted  by the Honourable Court.

3. That the Costs of this  Application be provided for.

The Application is premised on the grounds that on 12th June 2020, the Chairman delivered a Ruling on the Applicant’s Notice of Motion Application dated  29th March 2019,  without Notice to the Applicant. That the Ruling was initially  set to be delivered on 14th February 2020,  but was adjourned to 6th March 2020,  but the same was not delivered. Further that a Notice was later issued  for27th March 2020,but it was not delivered  and the Applicant was informed that it would be delivered  after  consent was issued by the parties. That subsequent follow ups  to get a consent from the Respondent’s Advocate were futile. That the Applicant learnt  that the Ruling was delivered when  the Respondent served him on 18th August 2020,with a letter  dated 17th August 2020  informing him that the  Ruling had been delivered on 12th June 2020,  and he was to pay a monthly  rent of Kshs.1116,000/= to the Respondent.

That the Applicant received certified copies of the Ruling and Order on 20th August 2020,  after doing a protest letter to the tribunal. That  the Applicant is likely to suffer substantial loss as the effects of the orders issued  are  that the Respondent  is allowed to distress  for rent and costs  against the Applicant for rent arrears,  yet the Applicant had been paying rent as he is in possession of the receipts.

Further that the time for filing an appeal lapsed on 12th July 2020, and the instant Application has been filed without any delay   as it was filed within 7 days of the discovery  of the delivery of the Judgment. That the intended Appeal  has high chances of success  as the  Chairperson  erred  in finding that there  is no proof that  the Interested Party terminated the  tenancy.   Further in finding that  the Interested Party had no capacity  to enter into a tenancy  Agreement  with the Applicant as the same is rebutted.  Further that the Chairperson erred in finding  that the Interested Party sought for rent  from both the Respondent  and the Applicant at the same time,  while the Respondent has not submitted any document to show that it has been  paying rent.   That no prejudice will be suffered by the Respondent if the orders of stay are granted as the Respondent occupies a section of the suit property,  but has not paid any rent to the Interested Party  for more than 5 years.

In his Supporting Affidavit  James Mwaura Karobi averred that  he is the registered  Lessee of L.R  Thika Municipality  Block 2/840,  and the Interested Party is the registered owner of the suit property .  That he had sublet  the suit premises from the Respondent  from the year 2013  to June 2016, where he paid monthly rent of Kshs. 40,000/= and in January 2015,  he commenced payment of kshs . 50,000/= per month to the  Respondent till June 2016, when  he became the  Lessee. That the Respondent started facing financial issues and the Land Lord / Interested Party terminated the tenancy agreement between itself and  the Respondent. That  he requested for a letter of offer  to take over the premises  when he realized that the Respondent had been issued with an Eviction Notice  and upon  issuance of the Eviction Notice, the Respondent offered to sell to him some of the businesses within the property.

That he was shocked when the  Auctioneers in the name of  Zack Mack Enterprises Limitedbeing instructed by the Respondent made a  demand for payment for  kshs. 2,370,000/= claiming rent arrears while he had paid the rent and all other charges to the Respondent.   That on 29th March  2020, he filed  an Application for  temporary injunctive orders  against the Respondent  in Tribunal Case  No. 73 of  2016 . He contended that  he has never entered into  an agreement with the Respondent for  monthly rent of Kshs. 116,000/=   as ordered by the tribunal . Further that  he forwarded the letter  from the Respondent to his Advocates  and the Advocates made follow ups  and were furnished with a Ruling  in which the Application was dismissed  with costs and it allowed  the Respondent to levy  distress for rent  from him  among other orders. That he is informed by his Advocates that the time for appeal lapsed  on 12th July 2020,  and the instant Application has been brought  timeously.

The Application is opposed and the  Respondent through  his Advocates  Dola Indidis swore a Replying Affidavit  on 8th September 2020,  and averred that the   Applicant is a stranger to the Respondent. Further that the Application dated  24th August 2020,  is incompetent   and an abuse of the Court process  as the Supporting Affidavit is incompetent and  proper cause of action is not  disclosed on the face  of it. That a similar effort was dismissed  on 25th February 2019,  by Hon. V . Kachuodho  SRM Thika,  in CMCC No. 866  of 2018. The Court was urged to dismiss the Application .

The Interested Party through  Horace Avedi,  its  Property Officer swore a Replying Affidavit on  17th September 2020,  and averred that the Interested Party is the registered owner of the suit property . That  on 1st August 2012, the  Interested Party entered into a license with the Respondent  for a period of 5 years. Further that during the pendency of the license,  the Respondent neglected to pay  the agreed rent and remained in arrears  to a tune of Kshs. 2,199,440. 00 and on 16th November 2015, the Interested Party  issued the Respondent with a demand letter  requesting him to settle the arrears. That   the Respondent continued in arrears and on  5th January 2016, the Interested Party terminated  the License.  That on 29th May 2019,the Respondent filed an Application seeking temporary injunction to prevent it from being evicted  and when  it filed the said Application, it was no longer a tenant neither was it in possession of the suit property. Further that pursuant to  termination of the license,  four acres of the suit property was  acquired by the County Government of Kiambu, a dispute which is still pending before Court.

That on 17th May  2016,the Interested Party  issued the Applicant  with a letter of offer  in respect of another portion  for a period of 5 years 3 months  from 1st July 2016, and the Applicant accepted the offer and subsequently  the parties entered into a lease agreement  dated 8th September 2016. He confirmed that the Applicant has been dutifully paying rent.

He contended that the chairperson erred  in his Ruling in finding that  there was no evidence to show that the landlord terminated the tenancy while  the termination letter dated 5th February 2016, was produced by the  Applicant . Further that the Ruling was erroneous for various reasons. He urged the Court to allow the Application.

The Applicant  James Mwaura Karobia  swore a  Supplementary Affidavit on 5th October 2020,  and averred that the Court dismissed  his Application in  Thika CMCC 866 of 2019,  vide a Ruling  dated 25th February 2019,  since the Respondent had filed  the BPRT Case  No. 73 of 2016,  and thus the Court found that it would amount to subjudice. That he is informed by his Advocate that the Court in the said case  did not determine the Application on its merits,  but only found that BPRT was seized of the matter . Further that the decision to file the Application  in Thika Law Courts was informed  by the fact that documents from BPRT were mixed up with documents  excluding him as a party,  while other had his name as a party to the proceedings.

He averred that since the filing  of the current Application, on 26th August 2020,  the Respondent ought  to attach his property for purported rent arrears  of Kshs 2,370,000/=contrary to the order of the tribunal which directed  that the Interested Party do credit  the rent that he had paid them  into the Respondent’s  rent account. That it is in the interest of Justice that the Application be allowed.

The Respondent through his Advocate Dola Indidisswore a Further Affidavit  on 5th October 2020,  and averred that the Supplementary Affidavit  dated 5th October 2020,  and Interested Party’s Affidavit  are merely divisionary  and raise no new issues outside  the substantive orders  and ruling of a competent court  and tribunal  and if the orders are not clear to them, they can seek clarification from them.

The Application was canvassed by way of written submissions which the Court has carefully read and considered. The Court has also considered the   Affidavits by the parties and the  annextures thereto. The Court finds that the issue for determination are;

a. Whether  the Applicant hasmet the legal threshold for granting leave to appeal out of time?

b. Whether the  Applicant has met the threshold for Grant of Stay of Execution orders.

a. Whether the Applicant hasmet the legal threshold for granting leave to appeal out of time?

This Court has jurisdiction to allow an Applicant to file an appeal out of time, but in doing so, the Court is  to use its discretion and be satisfied that the Applicant has given sufficient reason to warrant the grant of the said leave.  Section 79Gof theCivil Procedure Act, provides that:-

“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having requisite for the preparation and delivery to the appellant of a copy of the decree or order: provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

In the case of Nicholas Kiptoo Arap Korir Salat…Vs….The Independent Electoral And Boundaries Commission & 7 Others [2014] eKLR, the Court held that:-

“............... It is clear that the discretion to extend time is indeed unfettered.

It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant. “We derive the following as the underlying principles that a court should consider in exercising such discretion:-Extension of time is not a right of a party.  It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;  Where there is a reasonable [cause] for the delay, the same should be expressed to the satisfaction of the court; Whether there would be any prejudice suffered by the respondent, if extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

In line with the foregoing case, it is this Court’s opinion that the question that must then be answered is whether the Applicant has explained the reason for the delay to the satisfaction of this Court.

It is the  Applicant’s contention that the Ruling of the Chairman was not  delivered on the date that it was set to be delivered and that the parties had been given various dates within which  the Ruling was set to be delivered. The Applicant’s contention that the Ruling was delivered in their absence and without Notice to them has not been rebutted. The Court therefore has no reason to doubt the same as the Court has seen the letter dated 18th August 2020, in which the Applicant through his Advocate raised the said concerns.

Further the Applicant has contended that he only learnt of the delivery of the Ruling on 18th August 2020, and the instant Application was  filed  on 24th of August 2020.    Therefore the Court is satisfied that there was  no inordinate delay in bringing the Application, and coupled by the fact that the Ruling was delivered on 12th June 2020, there was indeed no inordinate delay.

The Applicant having given a  satisfactory explanation as to why the he did not file the Appeal on time, this Court finds that the Applicant has met the threshold  for grant of leave to Appeal out of time thereby persuading the Court to exercise its discretion and allow him to file his appeal out of time  it.See the case ofStanley Kahoro Mwangi & 2 others v. Kanyamwi Trading Company Limited (2015)eKLR,wherethe court held that;

“The principles guiding the court on an application for extension of time premised upon Rule 4 of the Rules are well settled and there are several   authorities on it. The principles are to the effect that the powers of the court in deciding such an application are discretionary and unfettered. It is, therefore, upon an applicant under this rule to  explain to the satisfaction of the Court that he is  entitled to the discretion being exercised in his  favour.

b. Whether the  Applicant has met the threshold for Grant of Stay of Execution orders

The Powers of a Court to grant stay of Execution pending appeal are discretionary in nature, Order 42 Rule 6(2) of the Civil Procedure Rules provides that:

“No order for stay of execution shall be made under subrule (1) unless-

a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

In the case of JMM…Vs….PM [2018] e KLRit was stated:

“As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”

There are also plethora of decided cases on the issue of grant of Stay of Execution pending Appeal.  See Civil Appeal No.107 of 2015, Masisi Mwita..Vs…Damaris Wanjiku Njeri (2016) eKLR, where the Court held that:-

“The application must meet a criteria set out in precedents and the criteria is best captured in the case of Halal & Another..Vs…Thornton & Turpin Ltd, where the Court of Appeal (Gicheru JA, Chesoni and Cockar Ag. JA) held that:-

“The High Court’s discretion to order stay of execution of its Order or Decree is fettered by three conditions, namely;- Sufficient Cause, substantial loss would ensue from a refusal to grant stay, the Applicant must furnish security, the application must be made without unreasonable delay.

In addition, the Applicant must demonstrate that the intended Appeal will be rendered nugatory if stay is not granted as was held in Hassan Guyo Wakalo … Vs … Straman EA Ltd (2013) as follows:-

“In addition the Applicant must prove that if the orders sought are not granted and his Appeal eventually succeeds, then the same shall have been rendered nugatory.”

These twin principles go hand in hand and failure to prove one dislodges the other.”

It is not  in doubt that the decision on whether or not grant stay of execution is discretionary  and the Court must exercise the same judiciously.   See the case of Canvass Manufacturers Ltd…Vs…Stephen Reuben Karunditu, Civil Application No.158 of 1994, (1994) LLR 4853, where the Court held that:-

“Conditions for grant of stay of execution pending appeal, arguable appeal and whether the appeal would be rendered nugatory. The discretion must be judicially exercised.”

Order 42 Rule 6 of the Civil Procedure Rules grants this court as an appellate court, as well as the trial court wide discretion to stay execution of decrees pending appeal. This Court has granted the Applicant Leave to Appeal out of time. The  Court has also  held that there was no inordinate delay in  filing the Appeal.   Therefore, the Applicant has satisfied one condition.

On whether there will be substantial loss; having gone through the Ruling of the tribunal, the Court notes that amongst the orders granted were those that allowed the Respondent to recover its   costs by levying distress for rent. The Court has gone through the Memorandum of Appeal and the Appellant/ Applicant is challenging the said decision. It is the Court’s considered view that if the   Respondent was allowed to levy distress for rent and it turns out that the Appellant/ Applicant is a successfully party, then  he will have suffered substantial loss and the same would render the Appeal nugatory.

The Applicant has  in his submissions agreed to  deposit the  security for costs  of Kshs. 30,000/=. The Respondent has not rebutted this and has not  given any reasons that he would suffer any prejudice if the Application is allowed. The Court is alive to the fact that it ought not to protect the Appellant at the expense of the successful party, but balancing the  interest of justice at this juncture, the Court is satisfied that it would be in the interested of justice to allow the  Application so that the Appeal is not rendered nugatory.

The Upshot of the above therefore is that the Court finds that  the Notice of Motion Application dated 24th August  2020, is merited and is allowed on the following terms;-

1. That the Applicant  be and is hereby granted leave  to appeal out of time against  the Ruling of the Chairman , Business Premises  Rent Tribunal, Mbichi  Mboroki, in Tribunal case  Number  73 of 2016 (Kiambu) delivered  on 12th June  2020 without Notice  to the Applicant herein.

2. That a Stay of Execution  in Tribunal Case No. 73 of 2016 (Kiambu) be and is hereby  granted  pending the hearing and determination  of this intended Appeal.

3. The Applicant to deposit Kshs. 30,000/= as security for costs within  30 days from the date hereof.

4. The  Applicant to file his Memorandum of Appeal within 14 days and the Record of Appeal within 30 days from the date hereof.

5. That the Costs of this Application to abide by the outcome of the appeal.

6. In the event of any default, the Orders issued will lapse automatically.

It is so ordered.

DATED, SIGNEDAND DELIVERED AT THIKA THIS8TH DAY OF APRIL 2021

L. GACHERU

JUDGE

8/4/2021

Court Assistant -  Phyllis

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Dollo holding brief for Mr. Orende for the Applicant

Mr. Dola for the Respondent

M/s Mwaura holding brief for Mr Wathuta for the Interested Party

L. GACHERU

JUDGE

8/4/2021