[2009] KEHC 2581 (KLR)
The court found that while the application for stay was filed without delay, the applicant failed to provide sufficient information regarding the nature of the dispute and the decision of the Business Premises Rent Tribunal. Critically, the applicant did not offer or even suggest any security for the due performance...
Source-derived case information.
- Citation
- [2009] KEHC 2581 (KLR)
- Parties
- Appellant: Getembe Hospital; Respondent: Masaba Farmers Co-operative Union
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Stay of Execution, Business Premises Rent Tribunal, Substantial Loss, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Getembe Hospital
Appellant
Masaba Farmers Co-operative Union
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the conditions for grant of stay of execution pending appeal under Order XLI rule 4(2) of the Civil Procedure Rules.
- 2 Whether the applicant has demonstrated substantial loss and offered security for due performance.
Ratio Decidendi
The court found that while the application for stay was filed without delay, the applicant failed to provide sufficient information regarding the nature of the dispute and the decision of the Business Premises Rent Tribunal. Critically, the applicant did not offer or even suggest any security for the due performance of the decree or order, which is a mandatory requirement under Order XLI rule 4(2) of the Civil Procedure Rules. In the absence of security and adequate disclosure of facts, the court was unable to find merit in the application for stay. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay pending appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL APPEAL 25 OF 2009
GETEMBE HOSPITAL ……………….………...………… APPELLANT
VERSUS
MASABA FARMERS CO-OPERATIVE UNION ……. RESPONDENT
RULING
The Affidavit Supporting this application does not state the nature of the dispute between the Applicant and the Respondent that the Business Premises Rent Tribunal was asked to decide on. It is not indicated what decision the Tribunal reached. No judgment or decree was extracted. From the Memorandum of Appeal annexed it appears the Applicant (which is a hospital) was given notice to vacate by the Respondent (which was the Landlord). It is apparent that the Tribunal upheld the notice and this is what aggrieved the Applicant and caused it to appeal.
I have indicated the foregoing because a party seeking stay pending appeal should be forthcoming on the facts of the case to enable to court determine whether there is merit it the application. Order XL1 rule 4(2) of the Civil Procedure Rules requires the Applicant to show that he stands to suffer substantial loss, application has been brought without delay and that he has offered security for the due performance of the decree or order. The Affidavit in support stated the Applicant is an on-going hospital whose operations will be disrupted with dire consequences if stay is not granted. That may be true, but the court is unable to reach a settled finding in view of the scanty information.
The Tribunal decision was delivered on 10/2/09. Application was filed on 17/3/09. There is no delay. However, the Applicant offered no security at all. It did not even suggest that it will abide by any order as to security. In these circumstances the application cannot be granted. The same is dismissed with costs.
Dated, signed and deliveredat KISII this 14th day of July, 2009
A.O. MUCHELULE
JUDGE
14/7/2009
Before A. O. Muchelule Judge
Mongare c/c
Mr. Makori for Mr. Masese for applicant.
Mr. Ayienda for Respondent
Court: Ruling in open court.
A.O. MUCHELULE
JUDGE