[2004] KEHC 508 (KLR)
The court found that the applicant failed to demonstrate substantial loss, as the funds in question were to be deposited into a joint account and not paid directly to the respondent. The precedent cited by the applicant was distinguished on the basis that, in that case, the tenant was paying agreed rent, whereas...
Source-derived case information.
- Citation
- [2004] KEHC 508 (KLR)
- Parties
- Appellant: Jacinta Pere; Appellant: Njenga Marimbel; Respondent: Lukas Kibegwa Okara t/a Kenagwa Enterprises; Respondent: Ole Kejuado County Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 228 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Security for Costs, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacinta Pere
Appellant
Njenga Marimbel
Appellant
Lukas Kibegwa Okara t/a Kenagwa Enterprises
Respondent
Ole Kejuado County Council
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss to warrant a stay of execution of the lower court's order.
- 2 Whether payment into a joint account constitutes sufficient security or mitigates risk of loss.
Ratio Decidendi
The court found that the applicant failed to demonstrate substantial loss, as the funds in question were to be deposited into a joint account and not paid directly to the respondent. The precedent cited by the applicant was distinguished on the basis that, in that case, the tenant was paying agreed rent, whereas here, the applicant had not shown any comparable risk or loss. Consequently, the application for stay was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI Civil Appeal 228 of 2004JACINTA PERE……………………………..……………………….1ST APPELLANT
NJENGA MARIMBEL…………………….………………………..2ND APPELLANT
VERSUS
LUKAS KIBEGWA OKARA
t/a KENAGWA ENTERPRISES…………………………………..1ST RESPONDENT
OLE KEJUADO COUNTY COUNCIL………………………......2ND RESPONDENT
RULING
The Applicant applies for a stay of the order of the lower court which ordered as a condition of stay of its order to evict the Appellant from the suit premises that the Appellant would have to pay the Kshs 30,000 per week which was to be paid into a joint account.
I can see no substantial loss shown as the money is not going into the pocket of the respondent but into a joint account.
The Appellant relied on the case ofNew Stanley Hotel Limited Vs Arcade Tobacconists Limited (1986) KLR 757 in which Porter J declined to order security. However, in that case, the tenant was contesting increased rent. He was however paying the agreed rent. As no substantial loss has been shown, l dismiss the application with costs to the respondent.
DATED AND DELIVERED THIS 9TH DAY OF DECEMBER 2004. P.J RANSLEY JUDGE