[2017] KEHC 6834 (KLR)
The court found that the appellant is in occupation of the disputed premises and has been paying rent to the 2nd respondent, facts which were not seriously challenged by the respondents. Recognizing the appellant's right of appeal and the risk that execution of the lower court's order would render the appeal...
Source-derived case information.
- Citation
- [2017] KEHC 6834 (KLR)
- Parties
- Appellant: Linet Kwatucha Weku; Respondent: Cornelius W. Wamalwa; Respondent: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 210 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Stay of Execution Pending Appeal
- Outcome
- Stay of execution granted pending appeal, conditional on filing the record of appeal within 30 days. Each party to bear own costs.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeals Process, Allocation of Municipal Housing, Possession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Linet Kwatucha Weku
Appellant
Cornelius W. Wamalwa
Respondent
City Council of Nairobi
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the lower court's order pending appeal.
- 2 Whether the appellant has demonstrated sufficient grounds for the grant of stay of execution.
- 3 Whether the appellant's occupation and payment of rent confer any rights pending appeal.
Ratio Decidendi
The court found that the appellant is in occupation of the disputed premises and has been paying rent to the 2nd respondent, facts which were not seriously challenged by the respondents. Recognizing the appellant's right of appeal and the risk that execution of the lower court's order would render the appeal nugatory, the court exercised its discretion to grant a stay of execution. The stay was made conditional upon the appellant filing the record of appeal within 30 days. Each party was ordered to bear their own costs, reflecting the court's view that both sides had arguable positions regarding the occupation and allocation of the property.
Court Disposition
Stay of execution granted pending appeal, conditional on filing the record of appeal within 30 days. Each party to bear own costs.
Orders
- Stay of execution of the lower court order dated 30th April, 2015 is granted pending hearing and determination of the appeal.
- The appellant shall file the record of appeal within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 210 OF 2015
LINET KWATUCHA WEKU ………………….. APPELLANT
VERSUS
CORNELIUS W. WAMALWA ………… 1 ST RESPONDENT
CITY COUNCIL OF NAIROBI………...… 2ND RESPONDENT
RULING
This is an application by way of Notice of Motion under Sections 1A, 1B and 3A of Civil Procedure Act and Order 42 Rule 6 (1) of the Civil Procedure Rules seeking a stay of execution of the order of the lower court dated 30th April, 2015 pending the hearing and determination of the appeal.
The dispute in the lower court related to occupation and ownership of a house No. HFO – 10 Huruma Estate Nairobi owned by the 2nd respondent. Both the appellant and the 1st respondent claim equal rights to the said house. The lower court made an order that the said house was allocated to the 1st respondent. The appellant disputed that position hence this application.
The application is dated 28th June, 2016 but the memorandum of appeal was filed timeously, that is on 8th May, 2015. Both counsel have filed submissions to the application. The appellant has filed what appears to be receipts and acknowledged by the 2nd respondent that she had been paying rent and is in occupation.
She has a right of appeal and there is not a serious challenge to the fact that she is in occupation of the said premises. I am inclined to allow stay of execution of the lower court order. The record of appeal however has to be filed within 30 days from the date of this ruling. Each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 28th Day of March, 2017.
A. MBOGHOLI MSAGHA
JUDGE