Walela v Chatur & 2 others (Tribunal Case E664 of 2023) [2024] KEBPRT 1746 (KLR) (At Nairobi) (13 December 2024) (Ruling)
Neutral citation:
[2024] KEBPRT 1746 (KLR)
Republic of Kenya
Tribunal Case E664 of 2023
P May, Member
December 13, 2024
Between
Elias Barasa Walela
Tenant
and
Madatali Chatur
1st Landlord
Mirihi Limited
2nd Landlord
and
Peter John
Caretaker
Ruling
1.The Tribunal delivered a judgement on 2/7/2024 in favour of the tenant. The landlord was granted stay of execution for 45 days. The landlord was aggrieved by the said decision and has lodged an appeal at the High Court. Subsequently, the landlord filed an application dated 9th August 2024 seeking for orders of stay pending appeal. This application is the subject of this ruling.
2.The application is premised on the grounds set out on the face of the application and those enumerated in the supporting affidavit sworn by the 2nd Landlord’s legal officer. The parties elected to canvass the application by way of written submissions.
3.The principles that guide the courts and Tribunals 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:-
4.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:
5.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. Has the Applicant demonstrated that substantial loss may result unless the orders of stay of execution are made? I have perused the Applicant’s affidavit in support of its application and the affidavit in my view seems to address itself to the merits of the Appeal filed by the landlord /Applicant and not the loss the landlord is likely to suffer if the orders sought are not granted. It is not enough to merely state that the Applicant was ordered to pay Kshs. 1,510,250/=. The Applicant is under a duty to demonstrate the damages it would suffer if the order for stay is not granted.
6.In the case of; Kenya Shell Ltd vs Kibiria [1986] KLR 440, the court at page 416 stated as follows:-
7.I am not satisfied that the landlord has demonstrated the loss it will suffer if the orders are not granted. There has been no suggestion that the Respondents would be unable to refund the sum awarded if the landlord eventually succeeds in its appeal. The application dated 9th August, 2024 is dismissed.
HON. PATRICIA MAYMEMBERBUSINESS PREMISES RENT TRIBUNALRULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF DECEMBER 2024.in the presence Tenant present and No Appearance for the Landlord HON. PATRICIA MAYMEMBERBUSINESS PREMISES RENT TRIBUNAL