[2014] KEHC 6203 (KLR)
The court found that the defendants failed to meet the threshold for grant of stay of execution pending appeal as required by Order 42 Rule 6 of the Civil Procedure Rules. The only evidence provided was a general assertion that the plaintiff's actions destroyed the defendants' business, without elaboration or...
Source-derived case information.
- Citation
- [2014] KEHC 6203 (KLR)
- Parties
- Plaintiff: Kingfisher Properties Limited; Defendant: Nandlal Jivraj Shah; Defendant: Vimal Nandlal Shah; Defendant: Mehul Nandlal Shah (all trading as Jivaco Agencies)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution dismissed with costs to the plaintiff; related application dismissed with no order as to costs.
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Mesne Profits, Vacant Possession, Injunctions, Appeals, Eviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kingfisher Properties Limited
Plaintiff
Nandlal Jivraj Shah
Defendant
Vimal Nandlal Shah
Defendant
Mehul Nandlal Shah (all trading as Jivaco Agencies)
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the defendants have satisfied the conditions for grant of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules.
- 2 Whether the plaintiff is entitled to enforce the judgment for vacant possession and mesne profits.
- 3 Whether the defendants are entitled to an injunction restraining the plaintiff from interfering with their possession and for return of detained goods.
Ratio Decidendi
The court found that the defendants failed to meet the threshold for grant of stay of execution pending appeal as required by Order 42 Rule 6 of the Civil Procedure Rules. The only evidence provided was a general assertion that the plaintiff's actions destroyed the defendants' business, without elaboration or specific details of the loss or how further loss would occur if stay was not granted. The court held that mere allegations without substantiation do not satisfy the requirement to demonstrate substantial loss. Consequently, the application for stay of execution was dismissed, and the related application for deposit of judgment sums and payment of mesne profits was also dismissed as...
Court Disposition
Application for stay of execution dismissed with costs to the plaintiff; related application dismissed with no order as to costs.
Orders
- The application dated 20th September 2013 is dismissed with costs to the plaintiff. The stay order of 20th September 2013 is vacated.
- The application dated 21st September 2013 is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 6 OF 2011
KINGFISHER PROPERTIES LIMITED ………...…. PLAINTIFF
V E R S U S
1. NANDLAL JIVRAJ SHAH
2. VIMAL NANDLAL SHAH
3. MEHUL NANDLAL SHAH (all trading as
JIVACO AGENCIES) …………….....………..… DEFENDANTS
RULING
This Court entered judgment in favour of Plaintiff on 23rd August, 2013. The terms of that judgment was that Defendants were to give to Plaintiff vacant possession of property known as Manyara Building/Mbsa/Block 1/351. Judgment for Plaintiff for-
(a) Kshs. 232,000/- plus mesne profit.
(b) Kshs. 46,400/- from 3rd July 2010 till Defendant vacate property Manyara Building.
Defendant filed Notice of Motion dated 20th September 2013 seeking for orders that there be an injunction restraining Plaintiff from interfering with Defendant’s peaceful and quiet possession of Manyara Building and that Plaintiff do return Defendant’s goods detained by it.
The Defendant said application essentially seeks stay of execution of this Court’s judgment of 23rd August 2013 pending appeal at Court of Appeal. Defendant filed a Notice of Appeal against that judgment on 3rd September 2013.
The grounds for seeking stay of execution are that the Plaintiff executed the aforestated judgment on 20th September 2013 when a group of thirty (30) people removed Defendants goods from the premises and in the process destroyed many of them. Defendant by their affidavit sworn by MEHUL NANDLAL SHAH deponed as follows-
“6. THAT the decree has not been perfected at all, nor have Ibeen served with any warrants either of attachment or ofeviction.
7. THAT the capricious acts of the Plaintiff have completely destroyed the Defendants business and am particularly worried about crucial documents that the so called auctioneers destroyed.”
That is the only evidence Defendant relies on in support of the application for stay pending appeal. Defendant did not elaborate what substantial loss they will suffer if the stay is not granted other than saying the acts of Plaintiff complained of destroyed Defendant business. There is no information how the business was destroyed or how it would suffer further loss if stay was not granted.
Defendant has failed to meet the threshold of Order 42 Rule 6 of Civil Procedure Rules. It is for that reason that the Notice of Motion dated 20th September 2013 must and does fail.
The Court is also considering Defendant’s application dated 21st September 2013. That application sought that this Court do order that if stay is granted to Defendant that an order be made for the amount of the judgment be deposited by Defendant in Court and further that Defendant be ordered to pay mesne profit due as ordered by the judgment of Court. Since the Court has found that Defendant application for stay has no merit the orders sought by Plaintiff in that application will not be considered.
In the end the Court orders-
(a) The application dated 20th September 2013 be and is hereby dismissed with costs to Plaintiff. The stay order of 20th September 2013 is therefore hereby vacated.
(b) The application dated 21st September 2013 is dismissed with no orders as to costs.
DATED and DELIVERED at MOMBASA this 20th day of MARCH, 2014.
MARY KASANGO
JUDGE