[2013] KEHC 1980 (KLR)
The court found that the applicant failed to satisfy the requirement of demonstrating substantial loss if stay of execution was denied. The offer to deposit security was not supported by any specific amount or evidence. The court also noted that the applicant's claim of tenancy was contradicted by the registration...
Source-derived case information.
- Citation
- [2013] KEHC 1980 (KLR)
- Parties
- Appellant: Solomon Mwenda M'Tuerandu; Respondent: Charles Ndegwa Mungania
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 262 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution and Leave to Come on Record
- Outcome
- application for stay of execution dismissed; leave to come on record granted
- Judges
- FM Njoroge
- Legal Topics
- Stay of Execution, Leave to Appear, Substantial Loss, Security for Due Performance, Eviction, Leasehold Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Mwenda M'Tuerandu
Appellant
Charles Ndegwa Mungania
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution and Leave to Come on Record
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the firm of Otieno C and Co. Advocates should be granted leave to act for the appellant.
- 3 Whether the appellant demonstrated substantial loss if stay is denied.
Ratio Decidendi
The court found that the applicant failed to satisfy the requirement of demonstrating substantial loss if stay of execution was denied. The offer to deposit security was not supported by any specific amount or evidence. The court also noted that the applicant's claim of tenancy was contradicted by the registration records, which showed the respondent as the leasehold owner. However, the court granted leave for the firm of Otieno C and Co. Advocates to act for the appellant, as required by the procedural rules. Consequently, the application for stay of execution was dismissed, and costs were ordered to be in the cause.
Court Disposition
application for stay of execution dismissed; leave to come on record granted
Orders
- The firm of Otieno C and Co. Advocates is granted leave to act on behalf of the appellant.
- The application for stay of execution of the judgment of the Ag Principal Magistrate's Court at Meru delivered on 7th June, 2013 is not allowed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO. 262 OF 2013
SOLOMON MWENDA M'TUERANDU............. …...................................APPELLANT
VS
CHARLES NDEGWA MUNGANIA....................................................... RESPONDENT
RULING
This application is dated 24th June, 2013 and prays for Orders;
1. THAT the application be certified urgent and service be dispersed with.
2. THAT this Honourable Court be pleased to grant leave to the firm of Otieno C and Co. Advocates to act on behalf of the appellant herein.
3. THAT this Honourable Court do order a stay of execution of the judgment of the Ag Principal Magistrate's Court at Meru delivered on 7th June, 2013 pending the hearing and final determination of the Appellants Appeal.
Prayer 1 is spent.
It was submitted for the applicant that he would suffer irreparable loss if he was evicted from plot NO. MERU MUNICIPALITY BLOCK 11/803. It was indicated that the applicant was willing to deposit reasonable security.
For the respondent, it was submitted that the applicant had not demonstrated that he would suffer substantial loss if stay of execution was not allowed. It was also argued that the offer to deposit security by the applicant was hollow as no amount had been indicated.
It was pointed to the court that the applicant claimed that he was a tenant of the Municipal Council while the records clearly showed that plot NO. MERU MUNICIPALITY/BLOCK 11/803 was registered as a leasehold in the name of the respondent for 99 years from 1/12/1995. It was argued that the respondent could not litigate on behalf of the council.
After examining the averments and the submissions of the parties, I find that the respondent has not satisfied the court that he will suffer substantial loss if stay is denied. Prayer 2, allowing the firm of Otieno C and Co to act on behalf of the applicant, will be allowed. It is therefore ordered;-
1. THAT the firm of Otieno C and Co. Advocates is granted leave to act on behalf of the appellant.
2. That the application for stay of execution of the judgment of the Ag PrincipalMagistrate's Court at Meru delivered on 7th June, 2013 is not allowed.
3. Costs will be in the cause.
Delivered at Meru this 14th day of August, 2013, in the presence of;- Murango Mwenda present for respondent.
E Kimathi holding brief for Otieno for the applicant.
P. M. NJOROGE
JUDGE