Kahugu Gakuru v John Chege & Partners [2013] KEHC 1332 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO. 224 OF 2013

KAHUGU GAKURU. .................................................... PLAINTIFF

VERSUS

JOHN CHEGE & PARTNERS. ............................. RESPONDENTS

R U L I N G

The Application before the court is a Notice of Motion dated          13th March, 2013. It was filed by the Applicant/Tenant under this appeal from the Business Premises Rent Tribunal’s decision dated the 8th February, 2013 ordering the applicants eviction from the business premises in L.R. No. 209/138/5/River Road, Nairobi, within 30 days.

This appeal which pends, is said to have been properly filed in this court and until it is heard and determined, the applicant therein seeks a stay of execution. The applicant further opines that he had carried on business in the said premises for a period of thirty (30) years during which he properly complied with the terms of the tenancy.

In the Ruling/Judgment appealed from dated 8th February, 2013, however, the Tribunal found that the tenant/applicant, had sublet the premises to a third party without the knowledge, information or permission of the landlords, (the Respondents herein) and hence found a breach of a major term and condition of the tenancy agreement between the parties. The tribunal accordingly ordered termination of the tenancy and ordered eviction of the tenant as above stated within 30 days. That aggrieved the tenant who filed this appeal.

The tenant also argues that unless the stay of execution is granted, he stands the danger of suffering irreparable damage which cannot be compensated by damages. He also argues that his appeal has arguable issues and is likely to succeed.

On the other hand the Respondent replied by stating that the appeal has no chances of succeeding and that eviction will not cause any financial or other damage since the facts before the lower court showed that the Tenant had left the premises to third parties, two years before.  The Respondent accordingly argued that the applicant will suffer no prejudice.

I have perused the ruling appealed from as well as the other papers and submissions from both sides. The facts show that the Tenant is over       80 years old and he himself quit doing business several years ago. He has children but none of them was interested in running the business. It is not denied that the business in the premises is being run people not related to the Tenant. The business being run presently in the premises is totally different from the tenants’ original business. There was no explanation or rationalization of these issues. Accordingly, the chances of the appeal succeeding are meager.

Furthermore, this court sees no possibility of any uncompensable loss befalling the tenant if evicted, because he left the premises sometime ago. In any case, if the appeal succeeds, the tenant can be able to assess damage if any, caused by eviction.

In these circumstances this court is not persuaded that this is a suitable case in which a stay of execution should be granted.

The result is that the application is dismissed with costs. Orders accordingly.

Dated and delivered at Nairobi this 11th day of November, 2013

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D A ONYANCHA

JUDGE