Automated Summary
Key Facts
The case involves Michael Aruwa (Applicant) seeking to stay the execution of eviction orders issued by the Business Premises Rent Tribunal against Peter Mwangi Thuku (Respondent), the registered proprietor of the property. The Applicant leased the property from Joel Mwaura Thuku (deceased) and continued paying rent to his wife Nancy Njoki Gatura until her death in 2017. After Thuku acquired the property in 2021, he issued an eviction notice in August 2022. The Applicant protested but failed to file a timely Reference to challenge the eviction, leading the Tribunal to dismiss his application for stay and set aside orders in March and July 2023. The Court found the Applicant's current application contradictory and insufficient to meet the criteria for a stay of execution, dismissing it with costs to the Respondent.
Issues
- The court assessed the allocation of costs for the application, concluding that the Applicant/Applicant did not meet the necessary criteria for the stay and the application was dismissed with costs to the Respondent.
- The court determined whether the Applicant satisfied the legal conditions for granting a stay of execution pending appeal, including sufficient cause, potential loss from refusal, security for costs, and demonstrating that the appeal would be rendered nugatory without the stay.
Holdings
- The court determined that the costs of the application will be borne by the Respondent, as the application lacks merit and was dismissed with costs to him.
- The court found that the Appellant/Applicant has not satisfied the conditions for granting an order of stay of execution pending appeal. The application dated 31st July 2023 is dismissed with costs to the Respondent.
Remedies
The application dated 31st July, 2023 is dismissed with costs to the Respondent. The court found that the Applicant failed to satisfy the conditions for a stay of execution pending appeal and the application lacks merit.
Legal Principles
The court applied the legal principle that an application for stay of execution pending appeal must satisfy three conditions: sufficient cause, substantial loss from refusal, and furnishing security. These criteria were derived from precedents like Halal & Another v. Thornton & Turpin Ltd. and Consolidated Marine v. Namprijad. The court found the Applicant failed to demonstrate these requirements, particularly the necessity to file a Reference within the statutory period under the Landlord and Tenant (Shop, Hotels and Catering Establishment) Act, Cap.301.
Precedent Name
- Consolidated Marine – Vs- Namprijad & Another
- Hassan Guyo Wakolo –vs- Straman E.A. Ltd.
- Masisi Mwita –VS- Damaris Wanjiku Njeri
- Vishram Rouji Halal –VS- Thornton & Turpin Ltd.
Cited Statute
- Civil Procedure Rules
- Landlord and Tenant (Shop, Hotels and Catering Establishment) Act
Judge Name
MD MWANGI
Passage Text
- "The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory."
- "This court's finding is that the Appellant/Applicant has not satisfied the conditions for grant of an order of stay of execution pending appeal. [...] Consequently, this court finds that the application [...] lacks merit. The said application is dismissed with costs to the Respondent."
- "The High Court's discretion to order stay of execution of its order or Decree is fettered by three (3) conditions namely: Sufficient Cause, substantial loss would ensue from a refusal to grant stay the Applicant must furnish security, the application may be made without unreasonable delay."