[2015] KEHC 3131 (KLR)
The court dismissed the application for stay on the ground that the appellant failed to provide the necessary pleadings and particulars of the applications before the Chief Magistrate's Court, rendering the application vague and incapable of determination. The court further held that the appellant's claim to remain...
Source-derived case information.
- Citation
- [2015] KEHC 3131 (KLR)
- Parties
- Appellant: Moses Esi Maloba; Respondent: Buberwa D Kemibaro; Respondent: Mujuni L. Kemibaro
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 102 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Eviction Proceedings, Rent Arrears, Right of Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Esi Maloba
Appellant
Buberwa D Kemibaro
Respondent
Mujuni L. Kemibaro
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay or set aside the ruling delivered by the Chief Magistrate's Court pending appeal.
- 2 Whether the application is fatally defective for lack of supporting pleadings and clarity on the orders sought to be stayed.
- 3 Whether the appellant is entitled to remain in occupation of the property based on alleged repairs and set-off against rent arrears.
Ratio Decidendi
The court dismissed the application for stay on the ground that the appellant failed to provide the necessary pleadings and particulars of the applications before the Chief Magistrate's Court, rendering the application vague and incapable of determination. The court further held that the appellant's claim to remain in occupation based on alleged repairs and unilateral set-off against rent arrears is not supported by law, as parties must seek legal remedies rather than resort to self-help. The absence of extracted orders and pleadings from the lower court left the High Court unable to ascertain the substance of the orders sought to be stayed, justifying dismissal of the application.
Court Disposition
application dismissed with costs to the respondents
Orders
- The Notice of Motion dated 5th August 2014 is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL NO. 102 OF 2014
MOSES ESI MALOBA ………………………………….…..APPELLANT
VERSUS
BUBERWA D KEMIBARO
MUJUNI L. KEMIBARO………………………...…….….RESPONDENTS
R U L I N G
1 MOSES ESI MALOBA has filed a Notice of Motion dated 5th August 2014 which is under consideration. Maloba seeks the following prayer:
That this honourable court be pleased to stay and/or set aside the Ruling delivered by honourbe M. N. Gicheru on the 30th July 2014 pending the hearing and determination of an appeal filed by the applicant against the said Ruling.
2 The Ruling sought to be stayed by this application made on order to the effect that, the application dated 27th August 2013 before the Chief Magistrate’s court, in Mombasa CMCC No. 1628 of 2013, was dismissed and the application dated 21st January 2014 before the same court was allowed. There seems to be no order which was extracted of that Ruling.
3 That being so Maloba was under a duty to supply to this court the pleading and the application of 27th August 2013 and 21st January 2014. He did not do so.
4 It follows I am unable to fathom the prayers in both those applications before the Chief Magistrate. This court by the present application is being asked to stay a ruling of applications that it does not know the ramnification of their prayers.
5 On that ground alone the notice of Motion dated is dismissed for being vague.
6 What however seem to be at stake reading from the affidavits before this court is Maloba’s plea in the chief magistrate’s court that he should not be evicted from hose No Plot No 3174 Section 021 New Nyali where the respondents are the administrators of the estate of the deceased owner of the land. It is alleged that Maloba has not paid rent for that house for sometimes now and the arrears accumulated are Ksh 3,139,850 as at October 2014. Maloba’s response is to deny that claim of arrears and to further to argue that he repaired the house of the deceased to the tune of Ksh 7 million and that, that entitles him to continue to occupy the house to recoup those expenses.
7 That argument by Maloba is tantamount to one taking the law into their own hands. In other words he is the judge who has determined the amount he allegedly spent on the alleged repairs and he proceed to decide how he is to recover the alleged amount. The law does not support such an action.
8 In view of what I have stated above and because I am handicapped by lack of pleadings before the chief magistrate’s court the Notice of Motion dated 5th August 2014 is dismissed with costs to the respondents.
Dated and delivered at Mombasa this 24th day of August 2015
MARY KASANGO
JUDGE
24. 8.2015
Coram
Before Justice Mary Kasango
C/Assistant –
For: Appellant:
For Respondent:
Court
The judgment is delivered in their presence/absence in open court.
MARY KASANGO
JUDGE