Ahmed v Janpath Holdings Limited (Environment and Land Appeal E005 of 2024) [2024] KEELC 5426 (KLR) (24 July 2024) (Ruling)
Neutral citation:
[2024] KEELC 5426 (KLR)
Republic of Kenya
Environment and Land Appeal E005 of 2024
NA Matheka, J
July 24, 2024
Between
Abdi Ibrahim Ahmed
Appellant
and
Janpath Holdings Limited
Respondent
(Ruling delivered on 17th May 2024 Delivered by Hon A. Muma in BPRT Cage No. E 034 of 2024
Tribunal Case E034 of 2024
)
Ruling
1.The application is dated 29th May 2024 and is brought under Order 22 Rule 25 Order 2 Rule and Procedure Rules the Civil Procedure. Section IA. IB and 3A of the Civil Procedure Act Cap 21 laws seeking the following orders;1.That on the grounds set forth in the Certificate of Urgency, this Application be certified urgent and due to the circumstances of this case, service of the same be dispensed with and it be heard exparte in the first instance for purposes of granting orders hereunder.2.That pending the hearing and determination of this application interparties, this Honourable Court be pleased to grant a temporary stay of the Ruling delivered on 17th May 2024 Delivered by Hon A. Muma in BPRT Cage No. E 034 of 2024 between Holdings Limited v Abdi Ibrahim Ahmed, and any consequential Orders or Decree therefrom.3.That the Execution of the Ruling issued on 17th May 2024 by Hon A. Muma in BPRT Case No. E 034 of 2024 between Janpath Holdings Limited v Abdi Ibrahim Ahmed, and all consequential orders and/or Decree arising therefrom be stayed pending the hearing and determination of the Appeal.4.Costs of this application be provided for.
2.It is based on the annexed affidavit of Abdi Ibrahim Ahmed and on the grounds that although no notice had been issued to the landlord and despite having itself written letters to the tenant of 7th August 2023 and 28th November 2023 the Landlord/Respondent filed a Reference at the Business Premises Rent against the Tenant contrary to the procedure provided for under the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. That upon filing of the Reference and the Notice of both of 19th January 2024, the Appellant/Tenant raised a Point of Preliminary Objection where he challenged the legality of the notices by the landlord through letters aforementioned for being defective on grounds that they both failed to conform to the Landlord and Tenant (Shops, Hotels and Establishments) Act. The tenant also challenged the Landlord's Reference filed for being premature, the same having been filed prior to the notices or any of the notice contemplated under the Act having been issued by the either the tenant and or the landlord. That in the Ruling delivered on 17th May 2024, the Honourable Member of the Tribunal when dealing with the issue as to whether the Landlords Notice of termination were valid, agreed with the tenant that indeed the said notices were not compliant with the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act. That despite having rightfully having held that the landlords notices were as submitted by the tenant, the Honourable Member of the Tribunal proceeded to fault the tenant for not having complied with an otherwise defective notice and thus issued the orders. That the tenant is strongly aggrieved by the said decision of the Honourable Member and has preferred an Appeal to this Honourable Court challenging the said decision. That the Tenant has already filed a Memorandum of Appeal dated 28th May 2024 and filed on the same date wherein he prays for among other orders, the reversal of the entire decision of the Honourable Member of the as well as the upholding of his Preliminary Objection which will have the consequences of dismissing the Reference in its entirety for not being compliant with the mandatory provisions of Cap 301.
3.This court has considered the application and the submissions therein. The principles for granting stay of execution are provided for under Order 42 rule 6 (1) of the Civil Procedure Rules as follows;Order 42, rule 6 states:
4.The appellants need to satisfy the Court on the following conditions before they can be granted the stay orders:1.Substantial loss may result to the applicant unless the order is made.2.The application has been made without unreasonable delay, and3.Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.
5.The principles governing the exercise of the court’s jurisdiction are now well settled. Firstly, the intended appeal should not be frivolous or put another way, the applicant must show that they have an arguable appeal and second, this Court should ensure that the appeal, if successful, should not be rendered nugatory. These principles were well stated in the case of Reliance Bank Ltd (In Liquidation) v Norlake Investments Ltd – Civil Appl. No. Nai. 93/02 (UR), thus;
6.The question of stay pending appeal has been canvassed at length in various authorities, such as in the Court of Appeal decision in Chris Munga N. Bichange v Richard Nyagaka Tongi & 2 Others eKLR where the Learned Judges stated the principles to be applied in considering an application for stay of execution as thus;
7.In the case of Mohamed Salim T/A Choice Butchery v Nasserpuria Memon Jamat (2013) eKLR, the court stated that;
8.We are further guided by the court’s decision in Carter & Sons Ltd v Deposit Protection Fund Board & 2 Others Civil Appeal No. 291 of 1997, at Page 4 as follows:
9.On perusal of the court record I find that the tribunal delivered its ruling on the 17th May 2024. That the Appellant being aggrieved and dissatisfied with the ruling filed an appeal herein vide a Memorandum of Appeal on the Court record. This application for stay was filed in court on the 29th May 2024. The Applicant has not been indolent and is not guilty of laches. the Appellant/Tenant raised a Point of Preliminary Objection where he challenged the legality of the notices by the landlord through letters aforementioned for being defective on grounds that they both failed to conform to the Landlord and Tenant (Shops, Hotels and Establishments) Act. I find that he Ruling delivered on 17th May 2024, the Honourable Member of the Tribunal when dealing with the issue as to whether the Landlords Notice of termination were valid, agreed with the tenant that indeed the said notices were not compliant with the provisions of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act.
10.The tenant is carrying on a warehousing business the premises and I find that if a stay of execution of the Judgment is not granted, Landlord/Respondent may proceed to have the orders executed against the Applicant thereby occasioning substantial loss to the Applicant and will lead to the Applicant's being evicted. The appeal will also be rendered nugatory and will be a mere academic exercise and the Appellant stands to suffer irreparable damage if the orders sought herein are not granted. I find that the applicant has fulfilled the above grounds mentioned to enable me grant the stay. I find the application dated 29th May 2024 is merited and I order that the status quo be maintained pending the hearing and determination of the appeal. Costs of this application to be in the cause.
11.It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 24TH DAY OF JULY 2024.N.A. MATHEKAJUDGE