[2010] KEHC 1530 (KLR)
The court found that the applicant's request to have the rental income from the disputed property deposited in a joint account was reasonable in light of the delay in the delivery of the ruling on the application for reinstatement of stay. The court exercised its discretion to grant interim relief to preserve the...
Source-derived case information.
- Citation
- [2010] KEHC 1530 (KLR)
- Parties
- Applicant: Samuel Nyabiba Nyakeri; Respondent: Peter Okiabera Omwenga
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 66 of 2008
- Procedural Posture
- Civil Appeal / Interlocutory Application for Interim Orders Pending Ruling on Reinstatement of Stay
- Outcome
- Application granted.
- Legal Topics
- Stay of Execution, Interlocutory Orders, Reinstatement of Application, Rental Income Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Nyabiba Nyakeri
Applicant
Peter Okiabera Omwenga
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Interim Orders Pending Ruling on Reinstatement of Stay
Legal Issues
- 1 Whether the court should order the deposit of rental income from the disputed property into a joint account pending the delivery of the ruling on reinstatement of stay of execution.
- 2 Whether the applicant is entitled to interim relief given the delay in delivery of the ruling.
Ratio Decidendi
The court found that the applicant's request to have the rental income from the disputed property deposited in a joint account was reasonable in light of the delay in the delivery of the ruling on the application for reinstatement of stay. The court exercised its discretion to grant interim relief to preserve the subject matter of the dispute and prevent potential prejudice to the applicant. The court further ordered that the sum be deposited in an interest-earning account held jointly by the advocates for both parties until the finalization of the ruling. The court also awarded costs of the application to the applicant.
Court Disposition
Application granted.
Orders
- The rental income from the disputed property shall be deposited in a joint interest-earning account held by the advocates for both parties until the delivery of the ruling on reinstatement of stay.
- The file is to be reconstructed and the matter is certified as urgent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Appeal 66 of 2008
SAMUEL NYABIBA NYAKERI……......…………………APPLICANT
=VERSUS=
PETER OKIABERA OMWENGA………………………RESPONDENT
RULING
I.Background
1. The Applicant had filed a suit in the subordinate Courts seeking orders that he is the sole owner of a Commercial plot.The subordinate Court held against the Applicant.Orders of stay was not granted.The Applicant applied to the High Court the Application dated 20th November 2008 coming before Ibrahim J was dismissedon the 17th March 2009.
2. An application to reinstate the said application by way of Notice of Motion dated 23rd March 2009 was heard on 9th May 2009. The Ruling of the said application was reserved.The Hon. Judge was then transferred to Mombasa and went together with the said file.
3. In the meantime, the Respondent has been collecting the rental income from the disputed premises.
4. The Applicant then filed this present application under Certificate of Urgency having served the Advocate for the Respondent.
5. This Court directed that a hearing notice do issue for an interparties hearing.The Advocate for the Respondent failed to attend Court.I am reliably informed that he would not attend Court.
II.Application
6. The Applicant stated that he was not under the impression that the delivery of his ruling would take long.This was unforeseeable.He therefore prays that this Court makes an order pending the delivery of the ruling for reinstatement of the stay of execution in this matter by the Hon. Judge being that the rental income of the disputed property be deposited in the joint account of the two Advocates.
III.Findings
7.
I believe this request is reasonable.That the said Advocate do accordingly open a joint account to deposit the rental income till the delivery of the ruling from the Hon. Judge be done.
8. I accordingly grant the prayer of this file being reconstructed which orders had been given earlier on exparte and certified this matter urgent.I further grant the prayers of depositingthe sum in an interest earning account of the two Advocates on this matter as prayed and till the finalization of the Ruling.
9. I award costs to the Applicant.
Dated this 29th day of July 2010
M.A. ANG’AWA
JUDGE
Advocate:
(i)J.O. Samba Advocate instructed by the firm of M/s Jeremiah Ongeri Samba & Co. Advocate
for theApplicant-Present
(ii)A. MomanyiAdvocate instructed by the firm of M/s Anassi Momanyi & Co. Advocate for the
Respondent -Absent – on strike
ORDER:
A copy of this Ruling and this file be forwarded to the Principal Judge on the 15th August 2010 for further direction.
M.A. ANG’AWA
JUDGE