[2008] KEHC 1025 (KLR)
The court found that the appellants had demonstrated sufficient cause for stay of execution, as the grounds of appeal were arguable and not frivolous. The application was made without unreasonable delay, and the appellants would suffer substantial loss if evicted before the appeal is heard. Although the appellants...
Source-derived case information.
- Citation
- [2008] KEHC 1025 (KLR)
- Parties
- Appellant: Charles Omwondo Suji; Appellant: Mary Wavinya Mwange; Respondent: Rebeca Kambu Gitau; Respondent: George Diya; Respondent: Amina Pojo - Official of Paji Mungu Self Help Group
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 136 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- stay of execution granted with conditions
- Legal Topics
- Stay of Execution, Eviction Orders, Appeal Procedure, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Charles Omwondo Suji
Appellant
Mary Wavinya Mwange
Appellant
Rebeca Kambu Gitau
Respondent
George Diya
Respondent
Amina Pojo - Official of Paji Mungu Self Help Group
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellants have demonstrated sufficient cause for stay of execution pending appeal.
- 2 Whether the appellants will suffer substantial loss if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the appellants had demonstrated sufficient cause for stay of execution, as the grounds of appeal were arguable and not frivolous. The application was made without unreasonable delay, and the appellants would suffer substantial loss if evicted before the appeal is heard. Although the appellants did not offer security in their affidavits, the court exercised its discretion to order payment of Kshs. 100,000 within seven days and Kshs. 9,000 per month thereafter as security. The stay of execution was therefore granted on these terms, pending the determination of the appeal.
Court Disposition
stay of execution granted with conditions
Orders
- The appellants to pay the respondents Kshs. 100,000 within seven days from the date of the ruling and thereafter Kshs. 9,000 per month from 30th October 2008 and on the 30th of each succeeding month until determination of the appeal.
- Execution is stayed pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Appeal 136 of 2007
1. CHARLES OMWONDO SUJI
2. MARY WAVINYA MWANGE
T/A ONE PALM RESORT AND/OR MACHAS WINES…........…APPELLANTS
VERSUS
1. REBECA KAMBU GITAU
2. GEORGE DIYA
3. AMINA POJO- OFFICIAL OF PAJI
MUNGU SELF HELP GROUP….................................................RESPONDEENTS
RULING
This Notice of Motion has been brought under the provisions of Order XLI Rules 4 and 6 of the Civil Procedure Rules. It is by the appellants and they mainly seek stay of execution of the Ruling of the Chairman of the Business Premises Rent Tribunal given on 14th August 2007 pending the determination of this appeal. The application is supported by an affidavit sworn by Charles Omwondo Suji, the 1st appellant on his own behalf and on the authority and permission of the 2nd appellant. The affidavit elaborates the grounds in the body of the Motion on Notice which grounds are as follows:-
a)That the Chairman of the Business Premises Rent Tribunal has made an order on 14th August 2007 to evict the appellants.
b)That the Respondents are in the process of evicting the appellants and if not stopped will make good their move and the process of this appeal will be rendered nugatory.
c)That the appellants stand to suffer substantial and irreparable loss if the intended execution is effected.
d)That the appeal herein has high chances of success.
The bases upon which an Order of Stay of execution of a decree can be sought are stated in Order XLI Rule 4 of the Civil Procedure Rules. They are as follows:
1)Demonstration of sufficient cause.
2)Establishment by the applicants that substantial loss may result if the order of stay is not granted.
3)Evidence that the application has been made without unreasonable delay.
4)Demonstration by the applicants that they can furnish security as may ultimately be binding upon them.
Regarding delay it is stated that the order appealed from was given on 14th August 2007 and it is noted that this application was lodged on 4th September 2007. The delay involved in of just over two weeks. In my view that delay is not unreasonable.
How about demonstration of sufficient cause? The appellants in their Memorandum of Appeal allege, among other matters, that the tribunal erred in Law and fact in proceeding to hear the preliminary objection without affording the appellant an opportunity to be heard which preliminary objection was in any event based on facts yet to be adduced. Those grounds in my view cannot be said to be frivolous. In other words the appellants’ appeal is arguable. In the premises, I am of the view that the appellants have demonstrated sufficient cause.
The appellants stand to be evicted unless stay is granted. If indeed they are evicted, there is no gainsaying that they will suffer substantial loss. In that event even if their appeal eventually succeeds the same may be rendered nugatory.
With regard to security the appellants have made no offer at all in their affidavits. However, their counsel stated from the bar that the respondents right to receive mesne profits can be maintained. Failure to make an offer of security is not a bar to making an order in that regard.
In the end I make the following orders:-
1)That the appellants do pay to the respondents Kshs. 100,000/= within seven days from the date hereof and thereafter Kshs. 9,000/= per month with effect from the 30th day of October 2008 and on the 30th of each succeeding month until the determination of the appeal.
2)Execution be and is hereby stayed pending the hearing and determination of the appeal.
3)The applicant shall pay the Respondents’ costs of this application.
4)In default of compliance with (1) above the order of stay of execution hereby granted to stand discharged and the Respondent be at liberty to execute.
5)Each party has liberty to apply.
Orders accordingly.
DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF SEPTEMBER 2008.
F. AZANGALALA
JUDGE
Read in the presence of Anyanzwa for the Respondent and Buti for the Applicant.
F. AZANGALALA
JUDGE
24TH SEPTEMBER 2008