Linet Kwatucha Weku v Cornelius W. Wamalwa & City Council of Nairobi [2017] KEHC 6834 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 210 OF 2015

LINET KWATUCHA WEKU ………………….. APPELLANT

VERSUS

CORNELIUS W. WAMALWA ………… 1 ST RESPONDENT

CITY COUNCIL OF NAIROBI………...… 2ND RESPONDENT

RULING

This is an application by way of Notice of Motion under Sections 1A, 1B and 3A of Civil Procedure Act and Order 42 Rule 6 (1) of the Civil Procedure Rules seeking a stay of execution of the order of the lower court dated 30th April, 2015 pending the hearing and determination of the appeal.

The dispute in the lower court related to occupation and ownership of a house No. HFO – 10 Huruma Estate Nairobi owned by the 2nd respondent. Both the appellant and the 1st respondent claim equal rights to the said house.  The lower court made an order that the said house was allocated to the 1st respondent.  The appellant disputed that position hence this application.

The application is dated 28th June, 2016 but the memorandum of appeal was filed timeously, that is on 8th May, 2015.  Both counsel have filed submissions to the application.  The appellant has filed what appears to be receipts and acknowledged by the 2nd respondent that she had been paying rent and is in occupation.

She has a right of appeal and there is not a serious challenge to the fact that she is in occupation of the said premises.  I am inclined to allow stay of execution of the lower court order.  The record of appeal however has to be filed within 30 days from the date of this ruling.   Each party shall bear their own costs.

Dated, signed and delivered at Nairobi this 28th Day of March, 2017.

A. MBOGHOLI MSAGHA

JUDGE