Joseph Ndichu Ngige v Christopher Were Barasa & Joan Wangari Kariuki [2021] KEBPRT 333 (KLR)

REPUBLIC OF KENYA

IN THE BUSINESS PREMISES RENT TRIBUNAL

VIEW PARK TOWERS 7TH & 8TH FLOOR

TRIBUNAL CASE NO. 684 OF 2015 ( NAIROBI)

JOSEPH NDICHU NGIGE..............LANDLORD

VERSUS

CHRISTOPHER WERE BARASA.......TENANT

JOAN WANGARI KARIUKI................TENANT

RULING

1. The application before me is the 1st Applicant/Tenant’s Notice of Motion dated 12th February, 2021 brought by way of certificate of urgency seeking for orders of stay of the execution and or in the alternative review of the ruling delivered on 4th December, 2020.

2. The application is supported by the annexed affidavit of Christopher Were Barasa. The detailed supporting affidavit gives an elaborate background on the grounds relied upon by the applicant. The application has been brought under the various provisions of Cap 301 to wit sections 9, 12,13, 14 and 15 and Order 22 Rule 25.

3. The Respondent in opposing the present application filed grounds of opposition dated 16th April 2021 terming the same as being bad in law and an abuse of the process the court process.

4. The parties were directed to file written submissions and there was compliance with the orders. The applicant filed further written submissions which also served as a response to the submissions filed by the Landlord. I have taken considerable time to review the record, the application and responses, and the respective submissions filed by the parties and would proceed as follows:

5. The gist of the present application is that the Tribunal allowed the Landlord’s reference filed on 28th September, 2015 vide the judgment delivered on 4th December, 2020. The Landlord was allowed to levy distress and granted the costs of the reference. Both parties were absent during the delivery of the judgement. The applicant has claimed that he was not issued with a notice for the delivery of the judgement.

6. The applicant being aggrieved filed the present application and has intimated to having filed an appeal at the Environment and Land Court. The main issues for determination are as follows:

a. Whether the application for review has merit?

b. Whether the applicant should be granted stay of execution pending the hearing and determination of the intended appeal?

Whether the prayer for review has merit?

7. This Tribunal is empowered to review its decisions by dint of section 13 of Cap 301 which provides as follows:

13. Compensation for misrepresentation

Where a Tribunal makes any order in respect of a tenancy under this Act and it is subsequently made to appear to the Tribunal that it was induced to make the order by the misrepresentation or the concealment of material facts by either party, the Tribunal may order the offending party to pay to the other party such sum as appears sufficient as compensation for the damage or loss suffered by such other party as a result of such order.

8. The applicant has made assertions that the Landlord concealed facts which if they had been availed, the Tribunal would have arrived at a different determination. The applicant has strongly argued that there does not exist a tenancy relationship between the parties as the ownership of the land where the demised premises are erected belongs to the applicant. A reading of the judgement reveals that the issues were raised previously and the Tribunal considered the same.

9. It is clear that the present application is an attempt by the applicant to appeal the decision at this particular forum. The is trying hard to reopen a decided matter and have the Tribunal sit as an appellate court over its own decision.

10. Further the disputed issues of land ownership should be best ventilated at the Environment and Land Court as this Tribunal is not vested with the jurisdiction to deal with such matters.

Whether the applicant should be granted stay of execution pending the hearing and determination of the intended appeal?

11. This Tribunal draws its powers from the provisions of section 12 of Cap 301. A reading of the same does not explicitly provide for instances whereby the Tribunal can grant orders of stay pending appeal.

12. The grant of an order of stay pending appeal is one that is to be given while exercising utmost judicial discretion. The applicant has to prove that they stand to suffer irreparable damage. There is also a competing interest of ensuring that a litigant who is successful in a case enjoys the fruits of the judgement.

13. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417gave 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.”

14. The above cited case captures the applicable principles in deciding whether or not to grant a stay of execution pending appeal. The applicant has alleged that they operate a school and that innocent school going children who are not parties to these proceedings stand to suffer irreparably in the event the Landlord will be allowed to levy distress.

15. The court in Julius Mogaka Gekonde t/a E-Smart Technical College .vs. Ouru Power Limited & another [2016] eKLRwhen faced with a similar predicament in determining while determining whether the applicant could be granted temporary orders of injunction stated as thus:

Having regard to the above authority, the circumstances of this case and in the interest of justice for the protagonists in this matter and the students at the plaintiff’s college, the order that commends itself to me is to partly allow the prayer for an interim injunction which shall be in place for 15 (fifteen) days only during which period the plaintiff shall clear all the rents due and owing to the defendant failure of which the interim orders will automatically lapse and/or stand vacated, and the 1st defendant shall be at liberty to issue a fresh proclamation notice to the plaintiff for purposes of distress.

16. The protagonists in these proceedings seem to agree that the demised premises are being used to offer education. However, the presence of the school going children should not in my view be used as a shield and veil to defeat the ends of justice from being met. The landlord has legitimate expectations of earning a livelihood from the demised premises.

17. The applicant has not tendered any evidence to prove that they have paid the rent arrears due. The Landlord stands to suffer irreparable damage in the event the intended appeal fails without him earning a dime from his investment.

18. I have taken cognizant of the prevailing circumstances, the period of time that has lapsed since the delivery of the judgement and the law, the order that commends itself is that the applicant to pay the outstanding rent arrears within 14 days. In default, the orders issued on 4th December, 2020 shall take effect.

19. The Landlord shall be awarded the costs of this application.

It is so ordered.

RULING READ, SIGNED AND DELIVERED THIS  6TH DAY OF SEPTEMBER  2021

HON. P. MAY

VICE CHAIR

BUSINESS PREMISES RENT TRIBUNAL

In the presence of:

G.E.O Oluoch for the Tenant/Respondent

MS Rotich for the Landlord.