[1997] KECA 161 (KLR)
The Court found that the application for stay of execution had been overtaken by events since the applicant and other occupants had already been evicted from the suit property. The Court held that, regardless of the merits of the intended appeal, there was no longer any basis to grant the stay sought. The...
Source-derived case information.
- Citation
- [1997] KECA 161 (KLR)
- Parties
- Applicant: Margaret Wanjiku Mwathi; Respondent: Dagret Investment
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 206 of 1997
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Intended Appeal
- Outcome
- application dismissed with costs
- Judges
- RO Kwach, AB Shah
- Legal Topics
- Stay of Execution, Mortgage Enforcement, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wanjiku Mwathi
Applicant
Dagret Investment
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending the intended appeal.
- 2 Whether the applicant's equitable interest or occupation prevents the sale and eviction after mortgage default.
Ratio Decidendi
The Court found that the application for stay of execution had been overtaken by events since the applicant and other occupants had already been evicted from the suit property. The Court held that, regardless of the merits of the intended appeal, there was no longer any basis to grant the stay sought. The applicant's equitable interest and occupation did not prevent the lawful exercise of the mortgagee's power of sale, and the subsequent eviction rendered the application moot. The application was therefore dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, OMOLO & SHAH, JJ.A.)
CIVIL APPLICATION NO. NAI. 206 OF 1997 (89/97UR)
BETWEEN
MARGARET WANJIKU MWATHI ................................ APPLICANT
AND
DAGRET INVESTMENT.......................................... RESPONDENT
(An Application for stay of execution in an intended appeal from the ruling of the High Court of Kenya at Nairobi (Justice Githinji) dated 19th June, 1997 in H.C.C.C. NO. 905 OF 1997) ********************
RULING OF THE COURT
The applicant's husband was the registered proprietor of the property L.R. No. 209/8467 (the suit property). The applicant claims to be equitably interested in the suit property. The applicant's husband did not pay the amount due under a mortgage in respect of moneys lent to the husband (Mr. Mwathi) by Kenya Commercial Bank Limited (KCB). KCB auctioned the property. It does not lie in the mouth of the applicant to say that as she was in occupation KCB had no right to sell the suit property or that suit property was irregularly sold.
The applicant confirms that she and fifteen other occupants have already been evicted from the suit property. This application has been overtaken by events. Whatever the merits of the intended appeal may be we see no cause or reason now to grant the prayers sought in this application which is dismissed with costs.
Dated and delivered at Nairobi this 11th day of August, 1997.
R.O. KWACH
..............................
JUDGE OF APPEAL
R.S.C. OMOLO
............................
JUDGE OF APPEAL
A.B. SHAH
............................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR