[2006] KEHC 2033 (KLR)
The court found that the applicant, having been a tenant in the business premises for a long period, would suffer irreparable loss in terms of goodwill if evicted before the appeal is heard. The court determined that the application was not defective, as the relevant order was issued on 26th May 2006. While the...
Source-derived case information.
- Citation
- [2006] KEHC 2033 (KLR)
- Parties
- Appellant: David Irungu; Respondent: Richard Wachira
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 42 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- conditional stay of execution granted pending appeal
- Legal Topics
- Stay of Execution, Landlord Tenant Disputes, Irreparable Loss, Conditional Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Irungu
Appellant
Richard Wachira
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the orders issued on 26th May 2006 pending appeal.
- 2 Whether the application is defective due to alleged non-existence of the impugned order.
- 3 Whether the applicant will suffer irreparable loss if evicted before the appeal is heard.
Ratio Decidendi
The court found that the applicant, having been a tenant in the business premises for a long period, would suffer irreparable loss in terms of goodwill if evicted before the appeal is heard. The court determined that the application was not defective, as the relevant order was issued on 26th May 2006. While the respondent raised the issue of rent arrears, the court held that this could be addressed by imposing a condition that the applicant pay all outstanding rent and continue to pay rent as it falls due. The court concluded that it was fair and just to grant a conditional stay of execution pending appeal, balancing the interests of both parties.
Court Disposition
conditional stay of execution granted pending appeal
Orders
- An order for stay of execution pending appeal shall issue on condition that the applicant pays all outstanding rent to the respondent and continues to pay rent as it falls due.
- Should the respondent refuse to accept the rent, the same shall be deposited in court.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 42 of 2006
DAVID IRUNGU………………………..............................……………….APPELLANT
VERSUS
RICHARD WACHIRA………………………..........................………..RESPONDENT
R U L I N G
David Irungu the applicant seeks orders for stay of execution of the orders issued in respect of the judgment in BPRT Case Number 20 of 2006 Nyeri on 26th May 2000 and any other orders issued pursuant thereto. It is the Applicant’s contention that He has been in occupation of the Business Premises subject of the dispute between him and the Respondent Richard Wachira (landlord) for the last 20 years and that He stands to suffer irreparable loss if evicted from the premises.
For the Respondent it was submitted that the application is defective as there were no orders issued on 26th May 2006. It is also submitted that the applicant has not shown that He will suffer irreparable loss and finally it is submitted that the applicant has not come to this court with clean hands as He has not disclosed that He has not paid the full rent due.
From the material placed before me it is evident that the applicant seeks an order for stay of execution of the order issued on 26th May 2006. A copy of the order has been availed wherein it is indicated that the order was given on 25th May 2006 and issued on 26th May 2006. I find that the application before the court is not defective.
It is further clear that the applicant having been a Tenant in the Business premises for a long time He will suffer irreparable loss in terms of good will if He is evicted from the business premises before his appeal is heard. With regard to the issue of rent arrears that can adequately be covered by a conditional order of stay of execution. I find that it is fair and just to grant a conditional order of stay of execution.
I therefore order that an order for stay of execution pending appeal shall issue on condition that the applicant shall pay all outstanding rent to the Respondent and shall continue to pay Rent as and when if falls due.
Should the Respondent refuse to accept the rent the same shall be deposited in this court.
Those shall be the orders of this court.
Dated, signed and delivered this 21st day of June 2006.
H. M. OKWENGU
JUDGE