[2009] KEHC 405 (KLR)
The court found that while the appellant had accumulated rent arrears and did not address this issue in his affidavits, he should not be barred from pursuing his appeal. In accordance with Order XLI rules 4 and 5 of the Civil Procedure Rules, the court granted a conditional stay of execution, requiring the appellant...
Source-derived case information.
- Citation
- [2009] KEHC 405 (KLR)
- Parties
- Applicant: Francis Kaburu; Respondent: Mohammed Musungu Ongokho
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 87 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Application Pending Appeal
- Outcome
- Application for stay of execution granted conditionally.
- Legal Topics
- Stay of Execution, Rent Arrears, Appeal Conditions, Service of Process
- 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
Francis Kaburu
Applicant
Mohammed Musungu Ongokho
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether the appellant should be granted stay of execution of the Business Premises Tribunal's orders pending appeal.
- 2 Whether the appellant was properly served with notice of the Tribunal proceedings.
- 3 Whether the appellant's rent arrears affect entitlement to stay of execution.
Ratio Decidendi
The court found that while the appellant had accumulated rent arrears and did not address this issue in his affidavits, he should not be barred from pursuing his appeal. In accordance with Order XLI rules 4 and 5 of the Civil Procedure Rules, the court granted a conditional stay of execution, requiring the appellant to deposit Kshs.70,000 as security within 21 days and to continue paying monthly rent. Failure to comply would entitle the respondent to execute the Tribunal's order. The court balanced the interests of both parties by imposing conditions to secure the respondent's claim while preserving the appellant's right to appeal.
Court Disposition
Application for stay of execution granted conditionally.
Orders
- The application dated 15th September, 2009 is granted on condition that the applicant deposits Kshs.70,000 in court as security within 21 days.
- The applicant shall continue paying monthly rent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Appeal 87 of 2009
FRANCIS KABURU …………………………………. APPLICANT
VERSUS
MOHAMMED MUSUNGU ONGOKHO ……… RESPONDENT
R U L I N G
The Appellant filed the application dated 15th September, 2009 seeking orders of stay of execution of the orders issued by the Business Premises Tribunal on 7th day of August, 2009 in Reference No. 48 of 2009 at Kakamega pending the hearing and determination of this Appeal.
Mr. Kundu, counsel for the appellant, relied on the Appellant’s supporting affidavit sworn on 15th September, 2009 and further affidavit sworn on 2nd October, 2009. Counsel submitted that the respondent issued the appellant with a termination notice dated 18th March, 2009. This led to the filing of Tribunal Case No. 40 of 2009. The appellant was only aware of this Tribunal Case and was not aware of Tribunal Case No. 48 of 2009. The appellant contends that he was never served with a hearing notice for both Tribunal Case numbers 40 and 48 of 2009. The premises are let for residential purposes and are not for business.
The Respondent relied on his replying affidavit sworn on 6th October, 2009. He contends that he gave the appellant notice to vacate his house as he was in arrears. He referred the matter to the Tribunal and he got a notice for hearing of the case on 7th August, 2009. He attended the hearing and the appellant was absent. The respondent further contends that the appellant has accumulated rent arrears totaling Kshs.49,000/=.
From the Memorandum of Appeal, the appellant states that he was condemned unheard and that he was not a party to Reference No. Kakamega 48 of 2009. The only issue is whether the appellant should be granted stay of execution orders pending the hearing and determination of his Appeal.
From the pleadings filed herein, I am satisfied that the appellant has accumulated rent arrears. The notice issued to the appellant by the respondent indicate that the appellant was Kshs.30,000/= in arrears. In both affidavits filed by the appellant the issue of rent arrears has not been mentioned.
I do not wish to shut out the appellant from pursuing his appeal. However, in line with the provisions of Order XLI rules 4 and 5, I do grant the application dated 15th September, 20009 on condition that the applicant deposits in court Kshs.70,000/= as security within Twenty (21) days hereof. The applicant should also continue paying the monthly rent. Should the appellant fail to deposit the above amount then the Respondent shall be at liberty to execute the order of the Business Premises Tribunal. Each party shall meet his own costs.
Delivered, dated and signed at Kakamega this 26th day of November, 2009
SAID J. CHITEMBWE
J U D G E