[2003] KEHC 647 (KLR)
The court found that the applicant failed to demonstrate any substantial loss that would be suffered if the stay was not granted. The applicant was legally obligated to pay rent as it became due, and the landlord's right to levy distress for rent was protected by statute. The dismissal order was a negative order,...
Source-derived case information.
- Citation
- [2003] KEHC 647 (KLR)
- Parties
- Plaintiff: Antony Kyalo Mutune; Defendant: Gatheca Holdings Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 419 of 2002
- Procedural Posture
- Stay Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Interlocutory Injunctions, Stay of Execution, Distress for Rent, Landlord Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antony Kyalo Mutune
Plaintiff
Gatheca Holdings Limited
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss to warrant a stay of execution of the dismissal order.
- 2 Whether the court can restrain the landlord from exercising the right to levy distress for rent pending appeal.
Ratio Decidendi
The court found that the applicant failed to demonstrate any substantial loss that would be suffered if the stay was not granted. The applicant was legally obligated to pay rent as it became due, and the landlord's right to levy distress for rent was protected by statute. The dismissal order was a negative order, and there was nothing to stay. The court emphasized that the foundation for granting a stay under Order 41 Rule 4 is proof of substantial loss, which was not established in this case. Consequently, the application for stay was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 419 OF 2002
ANTONY KYALO MUTUNE ……………………. PLAINTIFF
- Versus -
GATHECA HOLDINGS LIMITED ………………. DEFENDANT
R U L I N G
The Plaintiff tenant came to court to restrain landlord defendant from levying distress on the only ground that the Plaintiff was entitled to settle of against rents on amount he had incurred in repairs to premises. Expenditure he said amounts to shs. 325,000/= see affidavit sworn on 20th November 2002. At that time the landlord was claiming rent amounting to shs. 314,664/=. The court considered the application for interlocutory injunction and rejected the sane on the grounds that such an amount of expenditure if proved can be paid to the tenant by the landlord and therefore in the circumstances it is liquidated money claim.
The tenant has now approached the court seeking stay of the said dismissal of interlocutory application saying that he intends and has already filed a Notice of Appeal to the Court of Appeal. It is to be noted that the order of dismissal is a negative order and nothing to be stayed in fact the applicant tenant is seeking an order to restrain the landlord once again from threatening or actually levying distress. The Court of Appeal has power to grant injunction in order to preserve the right of appeal of parties.
In the present case under order 41 rule 4 the court is bound to find that substantial loss is likely to be suffered by the applicant. In the circumstances of this case, I do not find that any substantial loss shall be suffered by the applicant. The applicant is bound by law of landlord and tenant to pay rent of the premises he occupies as it becomes due. The landlord swears that up to 4/6/2003 rent outstanding amounts to shs. 385,598/= and by now it is shs. 460,958/00. It is obvious that rent will continue being due every month even when the proposed appeal is pending.
The right of landlord to demand rent is given under the Distress for Rent Act and the court cannot prevent or restrain the landlord from exercising his lawfully given right.
I therefore find that no substantial loss is shown. In the case of Kenya Shell Vs. B. Karuga it was stated that the foundation of the jurisdiction under order 41 rule 4 is substantial loss which has to be proved by the applicant. In this application no such loss has been proved. I am not inclined to grant stay in this matter. I dismiss the application with costs.
Dated this 11th day of July, 2003.
JOYCE KHAMINWA
JUDGE