[2010] KEHC 3934 (KLR)
The court found that the applicant had not demonstrated any special circumstances warranting a stay of execution of the monetary decree. The amount in question was not substantial, and there was no evidence or affidavit to show that the respondent was a person of no known assets within the jurisdiction. Furthermore,...
Source-derived case information.
- Citation
- [2010] KEHC 3934 (KLR)
- Parties
- Appellant: Luore Management Limited; Respondent: Samson Ogola Oyala
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 247 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Monetary Decree, Landlord Tenant Disputes, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luore Management Limited
Appellant
Samson Ogola Oyala
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the monetary decree pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether security for due performance of the decree has been offered by the applicant.
Ratio Decidendi
The court found that the applicant had not demonstrated any special circumstances warranting a stay of execution of the monetary decree. The amount in question was not substantial, and there was no evidence or affidavit to show that the respondent was a person of no known assets within the jurisdiction. Furthermore, the applicant did not offer any security for the due performance of the decree as required by the Civil Procedure Rules. The court also declined to grant orders relating to the tenancy contract, as the trial court had not ordered the respondent to vacate and the High Court could not rewrite the contract or supervise its terms. Consequently, the application for stay of...
Court Disposition
application dismissed
Orders
- The application for stay of execution pending appeal is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Civil Appeal 247 of 2009
LUORE MANAGEMENT LIMITED.......................APPELLANT
-VERSUS-
SAMSON OGOLA OYALA..............................RESPONDENT
RULING
Before the trial court at HomaBay the respondent sued the applicant for orders of unconditional opening of his business at the applicant’s premises and for general damages. The applicant filed a Defence and Counterclaim. He denied locking the respondent’s premises. The applicant counter-claimed for outstanding rents and for power bills owed to Kenya Power and Lighting Co. Ltd. The matter was heard and the respondent found to be the applicant’s tenant. It was also found the respondent had terminated his lease effective 1st July, 2009. The court found the applicant had locked out the respondent which was illegal. It ordered the re-opening of the premises and general damages for Kshs. 20,000/= against the applicant. On the Counterclaim, it gave judgment in the sum of Kshs. 45,480/= being rent arrears and Kshs. 19,979/10 being electricity bills.
The applicant has appealed against the judgment and, pending the hearing and determination of the appeal, seeks stay underOrder 41 rule 4(1) of the Civil Procedure Rules. There was no response from the respondent.
If the respondent executes the decree he will be seeking to recover Kshs. 20,000/= plus costs. This would be a money decree. It is not usual for a court to grant stay of execution in monetary decrees unless there are special circumstances such as the fact that the amount payable under the decree is substantial and the respondent has no known assets within the jurisdiction from which the applicant can recover in event that the appeal is successful. (SeeSingh .V.Runda Estates Ltd [1960] EA 263). The amount in this case is not substantial, and it has not been sworn or shown that the respondent is a man of no known assets. Consequently, I find the applicant has not demonstrated that he stands to suffer substantial loss if the application is not granted.
The applicant asked that the respondent be ordered to vacate the premises or he be ordered to continue to pay due rents until the appeal is heard and finalized. The trial court found the applicant had not, in the Contention, asked the respondent to vacate the premises. This court may not be asked to re-write the tenancy contract between the parties, or to supervise its life.
There was no security for the due performance of the decree offered by the applicant.
The application is hereby dismissed.
Dated, signed and delivered at Kisii this 2nd day of February, 2010.
A.O.MUCHELULE
JUDGE
2/2/2010
Before A.O.Muchelule-J
Court clerk-Bibu
Mrs. Opanga for Applicant
Court: Ruling in open court.
A.O.MUCHELULE
JUDGE
2/2/2010