[1998] KECA 113 (KLR)
The Court found that the applicant had an arguable appeal and that the appeal would be rendered nugatory if a stay was not granted, especially since the applicant had already been evicted before the application was heard. The respondent's conduct in proceeding with eviction despite knowledge of the pending...
Source-derived case information.
- Citation
- [1998] KECA 113 (KLR)
- Parties
- Applicant: Haircare Beauticians Ltd.; Respondent: Standard Properties Ltd.; Respondent: Capital Trustees Ltd.
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 179 of 1998
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Appeal
- Outcome
- Application allowed. Mandatory injunction granted. Stay of execution pending appeal granted. Costs to abide the appeal.
- Judges
- RO Kwach
- Legal Topics
- Stay of Execution, Mandatory Injunction, Possession of Premises, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Haircare Beauticians Ltd.
Applicant
Standard Properties Ltd.
Respondent
Capital Trustees Ltd.
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal.
- 2 Whether a mandatory injunction restoring possession should issue after eviction before hearing of the stay application.
- 3 Whether the appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court found that the applicant had an arguable appeal and that the appeal would be rendered nugatory if a stay was not granted, especially since the applicant had already been evicted before the application was heard. The respondent's conduct in proceeding with eviction despite knowledge of the pending application was deemed wrongful. The Court exercised its discretion to grant a mandatory injunction restoring possession to the applicant and ordered a stay of execution pending the hearing of the intended appeal.
Court Disposition
Application allowed. Mandatory injunction granted. Stay of execution pending appeal granted. Costs to abide the appeal.
Orders
- A mandatory injunction is issued against the respondent restoring possession of the suit premises to the applicant forthwith.
- There will be a stay of execution as prayed pending the hearing of the intended appeal.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, TUNOI & LAKHA, JJ.A.)
CIVIL APPLICATION NO. NAI. 179 OF 1998 (68/98UR)
BETWEEN
HAIRCARE BEAUTICIANS LTD. .............................APPLICANT
AND
STANDARD PROPERTIES LTD.
CAPITAL TRUSTEES LTD. .................................RESPONDENTS
(An application for stay of execution in an intended appeal from a Ruling of the High Court of Kenya at Nairobi (Justice Kuloba) dated 17th June, 1998
in
H.C.C.C. NO. 2494 OF 1997)
***************** RULING OF THE COURT
This is an application under rule 5(2)(b) of the Rules of this Court for a stay of execution of the Order of superior court (Kuloba, J.) given on 17th June, 1998 giving Possession of the suit premises to the Respondents.
The applicant conducts the business of a hairdressing college in the suit premises and on 24th March, 1998 Hayanga, J. had made a consent order. The applicant made payment under the consent order albeit out of time but it was accepted by the landlord. Yet the landlord having accepted the payment sought to evict the applicant. Clearly the applicant is aggrieved and asks for a stay pending appeal.
This application was to the knowledge of the respondent as Mr. Balala rightly concedes and the applicant was evicted as the respondent stole a march over the process of the Court by evicting her before this application was heard. This Court will not sit back and encourage conduct, unlawful or wrongful as a passport to favour.
We are satisfied that the applicant has an arguable appeal and it will be rendered nugatory if stay is not granted. In all the circumstances, we are satisfied that this is a fit case for the exercise of our discretion.
Accordingly, we order that a mandatory injunction do issue against the respondent restoring possession of the suit premise to the applicant forthwith. There will be a stay as prayed pending the hearing of the intended appeal. Costs to abide the appeal.
Made and delivered at Nairobi this 23rd day of July, 1998
R.O. KWACH
JUDGE OF APPEAL
P.K. TUNOI
JUDGE OF APPEAL
A.A. LAKHA
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR