[2020] KEHC 6317 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL AND ADMIRALTY DIVISION

CIVIL SUIT NO. 506 OF 2008

PAUL KARUGA NJUGUNA..................................................................PLAINTIFF

- VERSUS -

HOUSING FINANCE COMPANY OF KENYA LIMITED......1ST DEFENDANT

PENINAH NJERI HASSAN.........................................................2ND DEFENDANT

RULING

1. Judgment was delivered, in this matter, on 18th August 2016. By that judgment the court dismissed the plaintiff’s case and ordered the plaintiff to be evicted from property LR No DANGORETTI/RIRUTA/S/272. That property is registered in 2nd defendant’s name.

2. The plaintiff sought stay of execution of that judgment pending appeal. The court by the Ruling of 16th February 2017 granted the plaintiff conditional stay of execution. Stay was granted on condition the plaintiff does pays Ksh 50,000 rent on the 5th day of each month and in event of default execution to issue.

3. The 2nd defendant has moved this court by Notice of Motion application dated 11th March 2019. The 2nd defendant seeks by that application the eviction of the plaintiff. The 2nd defendant by her affidavit in support of the application alleges that the plaintiff is in arrears of rent by the amount of Ksh 450,000. 00. That the plaintiff has continually failed to obey the conditions of stay of execution which is prejudicial to the 2nd defendant.

4. The plaintiff by his replying affidavit dated 26th April 2019 deponed that he had attended Equity Bank to deposit his rent into the bank account given by the 2nd defendant but was informed that the account was in the name of Dr. Adeyemi Frank Attere. This prompted his advocate to write to the 2nd defendant’s advocate, by letter dated 9th April 2019, and informed the said advocate that the bank account supplied to the plaintiff did not belong to the 2nd defendant. Since that letter did not get a response his advocate wrote another letter dated 6th June 2019 making the same inquiry. The plaintiff gave that as the reason for failure to pay rent when due.

5. By a further affidavit of the plaintiff sworn on 25th July 2019 the plaintiff attached banking slip of the rent due which was deposited in the bank account given to him by the 2nd defendant, which he said he later found out it was a joint account of 2nd defendant and DR. Adeyemi Frank Attere. The plaintiff deponed that he was upto date with his rental payments.

6. Unfortunately there was no response from the 2nd defendant to the plaintiff’s deposition that he was unable to deposit his rent into the bank account supplied by 2nd defendant because it was in another person’s name nor was there response to the deposition that the plaintiff is upto date with his rental payments.

7. In the light of the above I am unable to determine whether the plaintiff was wilfully in default of the conditions for stay. Accordingly I am unable to accede to the 2nd defendant’s application. Although I am unable to grant the prayers sought the 2nd defendant will not be barred to seek the plaintiff’s eviction in case of any future default.

CONCLUSION

8. I grant the following orders:

a. The Notice of Motion dated 11th March 2019 for the reason set out above is disallowed. Leave is however granted to the 2nd defendant to file for the eviction of the plaintiff in case of future default of condition of stay.

b. There shall be no order as to costs to Notice of Motion dated 11th March 2019.

DATED, SIGNED and DELIVERED at NAIROBI this27thday of APRIL,2020.

MARY KASANGO

JUDGE

ORDER

In view of the measures restricting court operations due to the COVID-19 pandemic and in light of the Gazette Notice No 3137 of 17th April 2020 and further parties having been notified of the virtual delivery of this decision, this decision is hereby virtually delivered this 27th day of April, 2020.

MARY KASANGO

JUDGE