IN THE COURT OF APPEAL
AT NAIROBI
(Coram:Platt, Gachuhi & Masime JJA)
CIVIL APPLICATION NO NAI 95 OF 1987
RHODA MUKUMA....................................PLAINTIFF
VERSUS
JOHN ABUOGA.....................................DEFENDANT
RULING
July 13, 1988, Platt, Gachuhi & Masime JJA delivered the following Ruling.
On November, 13, 1986, Schofield, J decided the dispute between the plaintiff and the defendant. He dismissed the plaint with costs to the defendant and entered judgment for the defendant on the counterclaim, ordering the eviction of the plaintiff from the suit premises and granting the defendant certain mesne profits with interest. The plaintiff appealed by a notice to that effect on November 14, 1986. The plaintiff also applied for stay of execution on November 19, 1986. The latter application was heard by O’Connor, J who ordered that the stay of execution would be refused in the High Court, but that there would be a stay for four weeks pending an application to the Court of Appeal. The judge said that in his view there was not a sufficiently high degree of possible success in the appeal. Therefore the application was made in this court on June 12, 1987, under this court’s original jurisdiction provided by rule 5(2)(b) of the Court of Appeal rules.
At first there was some difficulty about a hearing notice being wrongly dated. As a result an ex parte order was made on June 29, 1987 granting the stay of execution applied for. The matter was then heard inter partes, the stay being extended as an interim order.
The stay should be confirmed. Mr Raballa urged the court to lift the stay.In his submissions he took the line that the plaintiff was only a tenant.The tenancy had been brought to an end and the plaintiff remained on the land as a trespasser without title. There had been a quite unfair delay. He relied on two English cases, but of greatest help to the court, is this court’s decision in Kenya Shell Ltd v Benjamin Karuga Kibuku and Ruth Wairimu Karuga, Nairobi Civil Application No 97 of 1986.
It was laid down in M M Butt v The Rent Restriction Tribunal, Civil Application No Nai 6 of 1979, (following Wilson v Church (No 2) (1879) 12 Ch 454 at p 488) that in the case of a party appealing, exercising his undoubted right of appeal, the court ought to see that the appeal is not rendered nugatory. It should therefore preserve the status quo until the appeal is heard.
Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security. The discretion under rule 5(2)(b) is at large, but as was pointed out in the Kenya Shell case substantial loss is the cornerstone of both jurisdictions. That is what has to be prevented, because such loss would render the appeal nugatory. Therefore it is necessary to preserve the status quo.
In this case, the issue between the parties was whether the land was sold or leased. If the plaintiff is right that the land was sold, and specific performance in transferring the land is ordered, to be evicted from the land at this stage would obviously imperil the plaintiff. A great outlay of capital has been extended and the plaintiff would lose the home her husband, herself and her family have built up since 1967. It is obvious that the plaintiff would suffer substantial loss.
But it is said that the appeal has no chance of success. We do not subscribe to that view. There is a serious argument which might go either way. The order ought to be made on terms that the plaintiff secures the costs of the appeal and the mesne profits ordered by the High Court.
We would therefore grant the application in both forms, namely (a) that there be stay of execution of the order for eviction; and (b) an injunction restraining the respondent from taking possession or dealing in any manner with the suit premises pending the hearing of the appeal.
The order will be on condition that the applicant secures the sum of Kshs 15,000 within one month from today’s date, such security to be to the satisfaction of the Deputy Registrar.
The costs of this application to be costs in the appeal.
It may be noted that Civil Application No Nai 69 of 1988 was dealt with in the course of this application.
Dated and delivered at Nairobi this 13th day of July 13, 1988
H.G. PLATT
.....................................
JUDGE OF APPEAL
J.M. GACHUHI
......................................
JUDGE OF APPEAL
J.R.O.MASIME
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JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR