[2012] KEHC 1119 (KLR)
The court found that the application for stay was made without undue delay and that the appellant would suffer substantial loss if evicted from the business premises before the appeal is determined. However, the respondent also stood to suffer loss if the appeal was dismissed and she was unable to recover rent...
Source-derived case information.
- Citation
- [2012] KEHC 1119 (KLR)
- Parties
- Appellant: Faith Amondi Apiyo; Respondent: Getrude Ojwang
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 95 of 2012
- Procedural Posture
- Civil Appeal / Stay Application Ruling
- Outcome
- Stay of execution granted on condition of payment of Kshs. 100,000 and continued monthly rent; otherwise, respondent at liberty to enforce tribunal judgment.
- Legal Topics
- Stay of Execution, Landlord Tenant Disputes, Rent Arrears, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Faith Amondi Apiyo
Appellant
Getrude Ojwang
Respondent
Procedural Posture
Civil Appeal / Stay Application Ruling
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the tribunal judgment pending appeal.
- 2 Whether the appellant will suffer substantial loss if the stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the application for stay was made without undue delay and that the appellant would suffer substantial loss if evicted from the business premises before the appeal is determined. However, the respondent also stood to suffer loss if the appeal was dismissed and she was unable to recover rent arrears. To balance the interests of both parties, the court ordered the appellant to pay Kshs. 100,000 (including Kshs. 41,000 already deposited in court) to the respondent within fourteen days as security, and to continue paying monthly rent until the appeal is concluded. The sum paid would be subject to adjustment at the end of the appeal depending on the outcome. Failure to...
Court Disposition
Stay of execution granted on condition of payment of Kshs. 100,000 and continued monthly rent; otherwise, respondent at liberty to enforce tribunal judgment.
Orders
- The applicant shall pay the respondent Kshs. 100,000 within fourteen days from the date of the ruling, inclusive of Kshs. 41,000 already deposited in court.
- The applicant shall continue to pay the usual monthly rent from the next month after the delivery of the ruling until the conclusion of the appeal.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
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FAITH AMONDI APIYO....................................................APPELLANT
VERSUS
GETRUDE OJWANG...................................................RESPONDENT
RULING
The appellant in her Notice of Motion dated 1st August 2012 prays that this court stays the execution of the Judgment in Kisumu Business Rent Tribunal Case No. 30 of 2012 dated 18th July 2012 pending the hearing and determination of the appeal. The same is supported by her affidavit sworn on the even date.
The appellant has since filed a Notice of Appeal to this court. It is opposed by the respondent vide her replying affidavit dated 29th August 2012.
After perusing the application and hearing both the appellant and the respondent counsels, what is not disputed is that the applicant is a tenant of the respondent. The rent tribunal ordered the tenant to vacate the respondent premise. Aggrieved by the said judgment the applicant has now filed this appeal.
The principles of granting stay pending appeal are grounded well under Order 42 Rule 6 of the Civil Procedure Rules and it includes:-
“(1) The court is satisfied that substantial loss may result to the applicant unless the Order is made and that the application has been made without unreasonable delay and
(2) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given to the applicant”.
I am satisfied that the application was made without undue delay. However what does the applicant stand to suffer? She stands to suffer the loss of using the business premises if she is evicted.
Does the respondent stands to suffer loss either? Yes she shall if indeed the appeal at the end of the day is dismissed without having recovered her rent. The respondent is claiming the rent arrears of Kshs. 138,000 which the applicant contest.
In the interest of justice therefore and for equitable purposes I do order that the applicant do pay the respond the sums of Kshs. 100,000 within the next fourteen (14) days from the date herein. This shall include the sum of Kshs. 41,000 already deposited in court.
Further the applicant shall continue to pay the usual monthly rent from the next month after the delivery of this Ruling till the conclusion of the appeal.
The aforesaid sum of Kshs. 100,000 in the event that the applicant shall have over paid the respondent shall be computed at the end of the appeal and refunded to the applicant or the same be applied to the rent.
In default of the above compliance the respondent be at liberty to effect the tribunal judgment .
Costs of this application shall abide the appeal.
Dated, signed and delivered at Kisumu this 14th day of November 2012.
H.K. CHEMITEI JUDGE
In the presence of:
P. J. Otieno for Odeny Advocate for the Appellant
Juma Advocate for the Respondent
HKC/aao