[2009] KEHC 3552 (KLR)
The court found that the applicant failed to demonstrate any substantial loss that would result if the stay of execution was not granted. The application for stay was made at the last minute without explanation for the delay. The applicant did not satisfy the requirements of Order XLI Rule 4(2) of the Civil...
Source-derived case information.
- Citation
- [2009] KEHC 3552 (KLR)
- Parties
- Appellant: Richard Olum Omollo; Respondent: Margaret Nduhu Gicharu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 67 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Stay Application Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Rent Disputes, Eviction Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Olum Omollo
Appellant
Margaret Nduhu Gicharu
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Application Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order for stay of execution of the Rent Restriction Tribunal's orders pending appeal.
- 2 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 3 Whether the application for stay was made without unreasonable delay.
Ratio Decidendi
The court found that the applicant failed to demonstrate any substantial loss that would result if the stay of execution was not granted. The application for stay was made at the last minute without explanation for the delay. The applicant did not satisfy the requirements of Order XLI Rule 4(2) of the Civil Procedure Rules, particularly regarding substantial loss and promptness. The precedent cited by the applicant was distinguished as it involved business premises and loss of goodwill, which was not the case here. Consequently, the court dismissed the application for stay with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed.
- The applicant shall pay the costs of the application to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
CIVIL APPEAL 67 OF 2009
RICHARD OLUM OMOLLO …………….APPELLANT/APPLICANT
VERSUS
MARGARET NDUHU GICHARU ................................RESPONDENT
R U L I N G
1. By a notice of motion dated 26th February, 2009, Richard Olum Omollo, (hereinafter referred to as the applicant), seeks an order staying execution of the orders issued by the Rent Restriction Tribunal on 4th February, 2009, pending the hearing of his appeal. The applicant who was a tenant in premises demised to him by the Landlady Margaret Nduhu Gicharu, (hereinafter referred to as the respondent), was on 4th February, 2009 ordered to pay Kshs.51,000/= together with costs to the respondent and deliver vacant possession by 28th February, 2009, or in default, be evicted from the premises. On 19th February, 2009, the applicant moved to this court and filed a memorandum of appeal against the judgment and order of 4th February, 2009.
2. In his affidavit sworn in support of the notice of motion dated 26th February, 2009, the applicant contends that he was unlawfully evicted from the suit premises on 18th September, 2008 but later managed to get back into the premises. The applicant maintains that the respondent’s claim for rent is non-existence. He therefore prays for an order staying execution of the decree.
3. The respondent has objected to this application through a replying affidavit which was sworn on 12th March, 2009. The respondent has annexed copies of proceedings and judgment of the Rent Restriction Tribunal. She maintains that the order of 4th February, 2009 was properly issued by the Tribunal after a thorough analysis of the evidence before it. The respondent maintains that the motion is just a gimmick to delay justice.
4. I have carefully considered the application. The applicant’s appeal which was filed on 16th February, 2009 was filed in time and does not require leave from this court. It is however apparent that the applicant delayed in coming to this court to seek an order for stay of execution. The orders sought to be stayed were issued on 4th February, 2009. There is no explanation as to why the applicant waited to come to court at the last minute just before he was due for eviction.
5. Secondly, the applicant has not demonstrated any substantial loss that he is likely to suffer if the order for stay is not granted. The case of Francis Murithi Gituku t/a Gituku Enterprises and another vs Francis Mwaura Mweiga HCCA No.532 of 2007, which was relied upon by the applicant’s counsel is distinguishable as the suit premises were business premises wherein the applicant had been carrying out business for a period of over 30 years.
6. In this case, there is no issue of any substantial loss arising from loss of goodwill. I find that the applicant has failed to satisfy the requirements of Order XLI Rule 4(2) of the Civil Procedure Rules. There is no justification for the orders sought by the applicant and accordingly I dismiss the application with costs.
Dated and delivered this 12th day of June, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Agwara for the appellant
Ms Kinyua for the respondent