[2005] KEHC 1529 (KLR)
The court found that while the application for stay was made without delay, the applicant failed to demonstrate substantial loss or provide any evidence of tenancy or protected status under Cap 301. Furthermore, the applicant did not offer any security for the due performance of the decree as required by Order 41...
Source-derived case information.
- Citation
- [2005] KEHC 1529 (KLR)
- Parties
- Appellant: Sammy Karanja; Respondent: Provident Rock Investment Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 393 of 2005
- Procedural Posture
- Civil Appeal / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondent; interim order vacated
- Legal Topics
- Stay of Execution, Security for Due Performance, Protected Tenancy, Eviction, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Karanja
Appellant
Provident Rock Investment Co. Ltd
Respondent
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated substantial loss if stay is not granted.
- 2 Whether the application for stay was made without unreasonable delay.
- 3 Whether the applicant has offered security for the due performance of the decree as required by law.
Ratio Decidendi
The court found that while the application for stay was made without delay, the applicant failed to demonstrate substantial loss or provide any evidence of tenancy or protected status under Cap 301. Furthermore, the applicant did not offer any security for the due performance of the decree as required by Order 41 Rule 4. In the absence of proof of tenancy and failure to satisfy all mandatory conditions, the court dismissed the application for stay of execution with costs to the respondent and vacated the interim order.
Court Disposition
application dismissed with costs to the respondent; interim order vacated
Orders
- The application for stay of execution is dismissed with costs to the respondent.
- The interim order is vacated.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
Civil Appeal 393 of 2005
SAMMY KARANJA ………………………………...…….. APPELLANT VERSUS PROVIDENT ROCK INVESTMENT CO. LTD ……... RESPONDENT
RULING
This is an application for stay of execution of the Judgment of the lower court pending the hearing and determination of the Appeal herein. It is made under Order 41 Rule 4 (1), (2) and (6) of the Civil Procedure Rules.
For the Applicant to succeed in this application he must demonstrate to the satisfaction of this Court that substantial loss will ensue if the Order is not granted; that he has filed this application without delay; and that he is willing and able to give such security as is ordered by the Court for the due performance of the decree. That is the plain reading of the Rule, and the onus is on the applicant to satisfy allthe conditions through his deposition, and not through bold statements from the bar.
Now, let us examine if the Applicant has satisfied all the three conditions outlined above.
The application has been made in a timely manner. However, has the applicant demonstrated substantial loss, and has he offered any security?
In my humble view, the answer is No. The Applicant says that he is a “protected” tenant under the Landlord and Tenant (Shops and Hotels & Catering Establishments) Act, Cap 301, but has annexed absolutely no proof of his tenancy – let alone of the fact that he is a “protected” tenant. In fact, the basis of his eviction from the suit premises is the finding of fact by the lower court that he was not a tenant of the Respondent.
In the face of that clear finding, the least he could have done was to annex some proof of his tenancy. He has not done so, and I have no basis to grant him the orders sought. On the other hand, the Respondent has stated categorically that the Applicant was not a tenant, and his only role was to collect rents from other tenants.
Secondly, the Applicant has offered no security as is required under Order 41 Rule 4.
Accordingly, and for reasons outlined, this application is dismissed with costs to the Respondent, and the interim order is vacated.
Dated and delivered at Nairobi this 21st day of September, 2005.
ALNASHIR VISRAM
JUDGE