Jiwa & another v Jiwa t/a Jiwa Properties [2024] KEBPRT 119 (KLR)

Jiwa & another v Jiwa t/a Jiwa Properties (Tribunal Case 152, 151 & 153 of 2021 (Consolidated)) [2024] KEBPRT 119 (KLR) (25 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 119 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case 152, 151 & 153 of 2021 (Consolidated)

P May, Member

January 25, 2024

Between

Rosemin Nazeraki Jiwa

1st Landlord

Aun Jiwa

2nd Landlord

and

Yusuf MN Jiwa t/a Jiwa Properties

Tenant

Ruling

1. The application before me is the tenant’s notice of motion dated 30th May, 2023. The application sought for orders of stay of judgement and any consequential orders issued on 20th May, 2022. The application is premised on the grounds set out in the supporting affidavit sworn by one Mburu Kariuki, advocate. The tenant stated that they were aggrieved by the decisions of the Tribunal hence they intend to make an application to appeal out of time. In the interim however, they have filed the present application even as they pursue their intended appeal.

2. The application has been opposed by the landlord who filed the notice of preliminary objection dated 15th June, 2023 on the grounds that the application was premature and that the Tribunal lacked jurisdiction since the application to file the appeal out of time has not been considered by the appellate court.

3. The parties elected to canvass the application by way of written submissions. I have considered the submissions, affidavits and the corresponding annextures and would proceed as follows:

4. The principles that guide the courts while considering an application for stay pending appeal are now well settled. The substantive provision for grant of stay pending appeal is to be found under order 42 rule 6 of the Civil Procedure Rules.Order 42 rule 6 provides in part as follows:-“6. (1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under sub-rule (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.(3)Notwithstanding anything contained in sub-rule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the rules of that court notice of appeal has been given.”

5. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 gave guidance on how a court should exercise discretion and held that:“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5. The court in exercising its powers under order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

6. Albeit the above principles were cited in an application for stay pending appeal, I find them relevant to cases of stay of execution of decree pending other proceedings. Thus, whereas there was no appeal pending here, but there could be other circumstances calling for the Tribunal to exercise jurisdiction and discretion to grant stay.

7. The present application for stay was brought under Order 22 Rule 22 of the Civil Procedure Rules among other enabling laws. The said provisions stipulate: -“22(1)The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment debtor to apply to the court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or the execution thereof, for an Order to stay the execution, or for any other order relating to the decree or execution which might have been made by the Court of first instance, or Appellate Court if execution has been issued thereby, or if application for execution has been mode thereto.(2)Where the property or person of the judgment debtor has been seized under an execution, the Court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application.(3)Before making an order to stay execution or for the restitution of property or the discharge of the judgment-debtor the court may request such security from, or impose such conditions upon the judgment-debtor as it thinks fit.”

8. From the above provisions, it is clear that a court/ Tribunal issuing decree may in its discretion stay execution of decree for a reasonable time and upon sufficient cause being shown, to allow the judgment-debtor apply for stay or to apply to the appellate court for stay, and the Court may impose conditions or order for security to be furnished by the judgment-debtor.

9. The landlord in opposing the present application has stated that the Tribunal lacks jurisdiction since the application for leave to file the appeal out of time has not be considered. Jurisdiction is everything and without it the Tribunal cannot proceed any further. In the case of owners of Motor Vessel “Lillian S” –vs- Caltex Oil (Kenya Ltd [1989] KLR 1, NyarangiJ.A. (as he was then) had this to say:-“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

10. The success of the present application is primarily premised on whether the appellate court shall grant the tenant leave to file their appeal out of time. The proper forum therefore for the tenant to have made the application was the appellate court that they intend to file their appeal in. Alternatively, the tenant should have filed the present application once they were granted leave to appeal.

11. The upshot of the above is that the application dated 30th May, 2023 is dismissed with costs.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JANUARY 2024. HON. PATRICIA MAYMEMBER25. 01. 2024Delivered in the absence of the parties.