[1998] KEHC 135 (KLR)
The court found that the applicant satisfied the requirements for a stay pending appeal: the application was made promptly, there was no unreasonable delay, and the applicant demonstrated that substantial loss would result if the stay was not granted, particularly in the context of eviction where reinstatement is...
Source-derived case information.
- Citation
- [1998] KEHC 135 (KLR)
- Parties
- Applicant: Zakayo Makumi; Respondent: Maina Githaiga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1066 of 1998
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay Pending Appeal
- Outcome
- application for stay pending appeal allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Eviction Proceedings, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Zakayo Makumi
Applicant
Maina Githaiga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay 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 adequate security for due performance has been provided.
Ratio Decidendi
The court found that the applicant satisfied the requirements for a stay pending appeal: the application was made promptly, there was no unreasonable delay, and the applicant demonstrated that substantial loss would result if the stay was not granted, particularly in the context of eviction where reinstatement is difficult. The applicant had remitted rent, negating the claim of default, and security could be provided by continued payment of rent. Therefore, the court granted a stay of execution until the appeal is heard and determined, on condition that the applicant continues to pay rent on the existing terms.
Court Disposition
application for stay pending appeal allowed
Orders
- A stay of execution is granted until the appeal is heard and finalised.
- The applicant shall continue to pay rent to the respondent on the old terms.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC. APPL. NO. 1066 OF 1998
ZAKAYO MAKUMI..............................................................PLAINTIFF VERSUS MAINA GITHAIGA..........................................................DEFENDANT
R U L I N G
In an application for a stay pending appeal, the applicant has a duty to show substantial loss shall result if the order is not granted, that the application has been made without unreasonable delay and security may be ordered for the due performance of the decree or order which may ultimately be binding on the applicant.
In the present application no appeal has been filed as, according to the applicant’s counsel, no proceedings have been received. It is common knowledge that in matters of eviction the issue of reinstatement is easier said than done and in most cases the preservation of the status quo is the best cause of action. On the same principle, where it appears distress is unlawful it is not enough to say that the remedy lies in damages. Where there is adequate security restitution will be ordered. The present application was filed within one week from the refusal by the Business Premises Tribunal to order stay pending appeal.
There was no delay. There is evidence that the applicant remitted the rent by way of money orders to the respondent. That cannot be a conduct of a serial defaulter. Security on the other hand can be in the form of continued payment of the monthly rent until the appeal is heard and finalised.
Accordingly the application succeeds. There shall be a stay as prayed until the appeal is heard and finalised. The applicant shall continue to pay rent to the respondent on the old terms. Costs shall be on appeal.
Orders accordingly.
Dated at Nairobi this 28th day of October 1998.
A. MBOGHOLI MSAGHA
JUDGE