HIGH COURT CIVIL APPEAL CASE NO. E014 OF 2024
(FROM THE ORIGINAL CIVIL SUIT NO. NYERI BUSINESS PREMISES RENT TRIBUNAL CASE NO. E100 OF 2022 CONSOLIDATED WITH NYERI BPRT E098 OF 2022)
KENYA AFRICAN OTHAYA BUS UNION……………………APPELLANT
VERSUS
IRENE NYANGARI……………………………..……….1ST RESPONDENT
ANN NYAMWEYA KARURU………...………….…….2ND RESPONDENT
RULING
- Before this Court is the Notice of Motion application dated 20th March
2024 by which the Appellant/Applicant KENYA AFRICAN OTHAYA BUS UNION seeks the following orders:-
“1. SPENT
- THAT this Honourable Court be pleased to grant a stay of
execution of the Ruling dated 8th March 2024 issued in NYERI BPRT Case NO. E100 OF 2022 and consolidated with NYERI BPRT E098 of 2022 pending the hearing and determination of the appeal herein.
- THAT the cost of this application be in the cause.
2. The application which was premised upon Section 3A of the Civil
Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules and all other enabling provisions of the law, was supported by the Affidavit of even date sworn by one ISSAC KING’ORI KEGA the chairman of the Appellant/Applicant.
3. The Respondents IRENE NYANGARI and ANN NYAMWEYA KABURU opposed the application by the Replying Affidavit dated 8th April 2024 sworn by LOISE N. MIRITI an Advocate of the High Court of Kenya.
4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 25th June 2024 whilst the Respondents relied upon their written submissions dated 10th July 2024.
5. This application arises from the Ruling delivered on 8th March 2024 in Nyeri BPRT Case NO. E100 of 2022. The Appellant who was aggrieved by that ruling filed the Memorandum of Appeal dated 19th March 2024. The Applicant also filed this present application seeking a stay of the ruling pending the hearing and determination of the appeal.
ANALYSIS AND DETERMINATION
6. I have considered the application for stay pending appeal, the reply filed by the Respondents as well as the written submissions filed by the parties.
7. The application for stay is premised upon the following grounds:-
“1. The Appellant has already lodged an appeal, which appeal raises triable issues with high probability of success.
2. The Respondents will not pay rent unless the orders sought are granted.
3. That substantial loss will accrue to the Appellant to the Appellant if stay of execution is not granted.
4. That the Appeal will be rendered nugatory if the orders sought are not granted.
5. That the Appellant willing to abide to any conditions the Honourable Court may deem fit to impose.
6. That it is meet and just to grant the orders sought.”
8. At this point the court is not required to delve into the merits or otherwise of the intended appeal. All the court has to determine is whether the Application for stay is merited.
9. Stay of Execution pending Appeal is provided for under Order 42 Rule 6 (2) of the Civil Procedure Rules which sets out the principles that the court should consider in deciding whether to grant a stay or not.
These are:-
“No order for stay of execution shall be made under subrule (1) unless -
- 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; an
- 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.”
10. From the foregoing, the Applicant should satisfy the court that:
(a) Substantial loss may result to him unless the order is made;
(b) That the application has been made without
unreasonable delay; and
- The applicant has given such security as the court
orders for the due performance of such decree or order as may ultimately be binding on him.
11. In this case the impugned Ruling was delivered on 8th March 2024. This application for stay is dated 20th March 2024 barely a fortnight after the ruling was delivered. I am therefore satisfied that the application for stay was filed in a timely manner.
12. The Applicant has argued that they stand to suffer substantial loss unless the orders of stay are granted.
13. In TROPICAL COMMODITIES SUPPLIERS LTD & OTHERS -VS- INTERNATIONAL CREDIT BANK LTD (In Liquidation) [2004] 2 EA the court stated that
“Substantial loss does not represent any particular mathematical formula. Rather it is a qualitative concept. It refers to any loss great or small that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal”
14. In Century Oil Company Ltd vs. Kenya Shell Limited Nairobi (Milimani) HCMA No. 1561 of 2007 Hon. Justice KIMARU (as he then was) stated that:-
“The word “Substantial” cannot mean the ordinary loss to which every judgement debtor is necessarily subjected when he loses his case and is deprived of his property in consequence. That is an element which must occur in every case and since the Code expressly prohibits stay of execution as an ordinary rule it is clear the words “substantial loss” must mean something in addition to all different from that… Where execution of a money decree is sought to be stayed, in considering whether the applicant will suffer substantial loss, the financial position of the applicant and that of the respondent becomes an issue. The court cannot shut its eyes where it appears the possibility is doubtful of the respondent refunding the decretal sum in the event that the applicant is successful in his appeal. The court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of his judgment. [own emphasis]
15. The Applicant submits if the stay is not granted then the Respondents will continue to occupy the premises free of charge i.e without paying any rent. I do not agree with this submission.
16. I have carefully perused the judgment of 8th March 2024. The tribunal in that judgment merely found that the landlord’s notice to terminate the tenancies were of no legal effect and were therefore dismissed. At no point in the judgment did the tribunal direct that the tenants were to continue occupying in the premises free of charge i.e without paying any rent.
17. My understanding is that once this judgment was delivered then the ‘status quo ante’’ would prevail. That is that the situation would revert to what existed before the termination notices were issued. The landlord’s notice having been dismissed then the tenants may continue to remain in the premises but must continue to pay the rent that they had been paying prior to that judgment. In the circumstances I do not see what substantial loss the Applicant is likely to suffer.
18. In the judgment delivered on 8th March 2024 the BPRT made the following orders
“(a) The landlord’s notices to terminate the tenants’ tenancies dated 30th June 2022 are hereby declared to be of no legal effect and are therefore dismissed.
(b) The tenants’ References are hereby allowed with costs.
(c) Each tenant is awarded costs of Kshs. 20,000/= which
shall be offset against the rent account if not paid by the landlord within Thirty (30) days hereof.” [own emphasis]
19. Therefore the Applicants claim that the tenants who pay a monthly rent a Kshs. 800 will occupy the premise free of charge would only arise if the Applicants failed to comply with the orders of the BPRT directing that they pay each tenant Ksh. 20,000/= within thirty (30) days. The Applicants failure to comply with this order is what would result in this sum of Kshs. 20,000 being offset against the rent account.
20. The Applicants cannot use their own failure to comply with court orders as a grounds to plead that they are likely to suffer substantial loss. They cannot have their cake and eat it.
21. In any event any loss which the Appellants would likely suffer would be monetary. This is quantifiable and if the Appellants succeed on appeal any such loss may be adequately compensated by way of a monetary award.
22. I therefore find no merit in this application for stay. I direct that the Respondents continue to pay the rent which they had been paying prior to the filing of their reference. This will however be SUBJECT to the appellant complying with the orders of the tribunal awarding each Respondent Kshs. 20,000 to be offset from their rent account.
23. Each party to meet its own costs.
Dated in Nyeri this 8th day of November 2024.