VINCENT SHIMENGA & 17 OTHERS V LUCY WAITHERA MUSA & ANOTHER [2012] KEHC 1893 (KLR)
Full Case Text
Editorial Summary
1. Civil Appeal
2. Civil Practice and Procedure
3. Subject of Tribunal case
RENT RESTRICTION TRIBUNAL
3. 1 Assessment of rent.
3. 2 18 tenants to:
1st respondent Lucy Waithera Musa and
2nd respondent Promast Enterprise Agent.
3. 3 Assessment of rent made on 24th May 2012.
3. 4 Tenants asked to pay increased rent with effect
from 1st July 2012.
3. 5 Tenant files appeal 5th June 2012.
3. 6 Tenants file application through authority given
to appellant for stay of execution pending hearing
of appeal dated 24th April 2007.
4. Application 24th April 2012
4. 1 The Rent Restriction Chairpeson made assessment
of houses within the vicinity and reduced rent.
4. 2 The issue of the rent payable should be
re-assessed.
4. 3 Pending the hearing of appeal, there be stay of
execution.
5. In reply:
5. 1 The application is defective and wanting.
5. 2 The matters refers concerns other parties not
party to appeal.
5. 3 The appellant/tenants not demonstrated application
would be successful. No proceedings attached.
6. Findings:
i) Application granted.
ii) There be stay of execution pending appeal.
7. Case Law:
8. Advocates:
i) Vincent Shimenga in person - appellant/tenant
ii) K.K. Kibathi instructed by Kimandu Gichohi & Co Advocates
for respondent/landlord
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Appeal 278 of 2012
VINCENT SHIMENGA & 17 OTHERS …………........................…….….. APPELLANT/TENANTS
VERSUS
LUCY WAITHERA MUSA ………………………......................…….… RESPONDENT/LANDLORD
PROMAST ENTERPRISE AGENTS ……………… 2ND RESPONDENT/ORIGINAL RESPONDENT
(Being an appeal from the judgment and assessment of the Hillary K. Korir Chairperson, of Rent Restriction Tribunal delivered on 24th May 2012 in Nairobi)
R U L I N G
Application of Stay of Execution
Pending Appeal
I.BACKGROUND
1. The applicant filed appeal with authority from 17 others. The applicants are tenants of the first respondent Lucy Waithera Musa together with the 2nd respondent Promast Enterprise Agent.
2. On 24th May 2012, as assessment of rent for their dwelling house was made by the chairman and member of the Rent Restriction Tribunal. The effect was to increase the rent.
3. Being dissatisfied, this appeal herein was filed (5th June 2012). But pending the appeal, the appellants filed an application dated
26th July 2012 duly awarded.
IIAPPLICATION DATED 26TH JULY 2012
4. The appellants argued that compared to others dwelling houses in the vicinity, the same Rent Restriction Tribunal had reduced the amount of rent to be paid. Those dwelling houses were superior and larger that the tin houses they were in.
5. The issue of rent payable should be re-examined in the appeal. But pending the hearing of the appeal there be stay of execution.
6. In reply, the application is said to be defective and wanting.
7. The matters referred to by the appellants referred to other parties not part of the appeal.
8. The respondent stated that the tenant did not demonstrate that they would be successful and as such their application be dismissed.
9. In an appeal before court from the Rent Restriction Tribunal, the issue herein would be assessment of rent. The perishable houses rooms in the vicinity would be taken into account in arriving at the assessment of rent.
10. The tenants have demonstrated the discrepancy between themselves and their neighbours where rents were assessed by the same tribunal. This is yet to be proved in the appeal. It was an application brought without delay.
11. I would hereby allow the application for stay of execution be and is hereby granted pending the hearing of the appeal.
12. The costs be in the appeal.
DATED THIS 17TH DAY OF JUNE 2012 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i) Vincent Shimenga in person - appellant/tenant
ii) K.K. Kibathi instructed by Kimandu Gichohi & Co Advocates
for respondent/landlord