1.This is the Notice of Motion application dated 31st day of January 2022.
3.It seeks orders;a.Spent.b.Spent.c.Spent.d.Pending the hearing and determination of this appeal, the Honourable Court be pleased to issue an order of stay pending appeal of the ruling of the Business Premises Rent Tribunal court dated 2nd December 2021.e.Costs of the application be in the cause.
4.The application is based on grounds on the face of the motion and on the supporting affidavit sworn on 31st January 2022 by Paul Nyaosi, Advocate on record for the Appellant.
5.Counsel deponed that the Appellant has appealed against the ruling of the Honourable Chairman delivered on 2nd December 2021 and that the appeal raises arguable points and as such, it will be rendered nugatory should the orders of stay not be granted. He added that the Appellant will suffer substantial loss .He also deponed that the Appellant is willing to deposit security in fulfilment of the provisions of Order 42 Rule 6 being in the form of a banking guarantee.
6.Mr. Nyaosi also deponed that public interest considerations weigh in favour of granting stay pending appeal as it will not be prudent to commit substantial public funds by effecting payment while it is probable that the judgment could be set aside or varied He added that the Respondent is unlikely to refund the decretal sum and therefore expose the Appellant to substantial loss.
7.The Respondent opposed the application by way of the replying affidavit sworn by its director Edward Nyingi Mukundi on 16th February 2022 and his affidavit of means sworn on 7th April 2022. He deponed that the Appeal does not raise any serious issue for consideration by this court and that the Applicant has not demonstrated how and to what extent substantial loss may result to it if the stay is not granted. He also deponed that the Respondent is capable of meeting the decree.
8.On the 22nd February 2022, the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.
The Appellant’s submissions
9.They are dated 28th March 2022.Counsel for the Appellant raised the following issues for determination: -a.Has the Appellant met the prerequisite conditions under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 to qualify for orders of stay pending appeal?b.Should the court exercise its discretion in its favour?
11.He submitted that this being a money decree, substantial loss lies in the ability of the Respondent to refund the decretal sum should the appeal succeed and that the Appellant has doubt that the Respondent is likely to refund the decretal sum. He put forward the case of Century Oil Trading Company Limited v Kenya Shell Limited  eKLR.
12.He also submitted that the Appellant being a Government entity utilizing public funds, the Court is enjoined by Article 201(d) of the Constitution to ensure that public money is used in a prudent and responsible way.
14.He submitted that the application was brought timeously and that the court has discretion to grant stay and that the court should exercise its discretion and opt for the lower rather than the higher risk of injustice.
The Respondent’s submissions
15.They are dated 7th April 2022.Counsel for the Respondent submitted that the following sole issue arises for determination:-a.Whether the Appellant has met the prerequisite conditions under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 to warrant the grant of stay pending appeal.
16.It was counsel’s submission that the Business Rent Tribunal ruled in favour of the Respondent and ordered the Appellant to pay the Respondent rent arrears. He added that the amount is not excessive and erroneous as it constitutes arrears of rent and service charge owing from the Appellant.
18.I have considered the notice of motion and the affidavit in support. I have also considered the response thereto, the written submissions and the authorities cited. The issue for determination is whether the Appellant/Applicant has made out a good case for grant of stay pending Appeal.
19.The law on stay pending appeal is Order 42 rule 6(1) and (2) of the Civil Procedure Rules which provides as follows:-
21.It is not disputed that the application was brought without delay and that the Appellant has offered security in terms of a bank guarantee. The issue is whether the Applicant has established sufficient cause and whether it has established substantial loss would ensue.
22.The Appellant argued that the Respondent would not refund the decretal sum. It also argued that being a parastatal and a public body, tax payer’s funds would be utilized to settle the decree yet it is probable that the judgement could be set aside or varied. The Respondent did file an affidavit of means and annexed its bank statement to dislodge that contention. The Respondent established that it has means. However, I note that it also annexed bank statements belonging to Paul Caffe Limited. No nexus was established between the Respondent and the said Paul Caffe Limited.
25.Taking the law, facts and case law into consideration, and considering what is in contention is a money decree in form of rent arrears, I find that though the Respondent deserves to enjoy the fruits of the judgement delivered in its favour, the Appellant also deserves a conditional stay of execution pending appeal.
26.In conclusion, I find merit in this application, thereby grant the orders as follows:-a.That a stay of execution of the ruling of the Business Premises Rent Tribunal dated 2nd December 2021 is hereby granted pending the hearing and determination of the Appeal on condition that the Appellant do execute a bank guarantee equivalent to Kshs.300,000/- within fourteen (14) days from the date of this ruling.b.That costs of this application do abide the outcome of the Appeal.It is so ordered.