Thara & another v Actae Development Ltd & another (Civil Application E054 of 2022) [2024] KECA 107 (KLR) (9 February 2024) (Ruling)
- Court
- Court of Appeal
- Case number
- 107
- Citation
- [2024] KECA 107 (KLR)
- Decided
- 9 February 2024
The motion is allowed, and the applicants are ordered to deposit Kes 1,357,542 in a joint interest earning account with a reputable bank within 30 days from the date of this ruling.
Facts
The applicants, Moses Njoroge Thara and Winfred Mwendia, sought a stay of execution of the judgment of the Environment and Land Court dismissing their case, allowing the respondent's counterclaim, and ordering them to pay Kes 1,357,542 as of October 15, 2015, with interest and costs.
Issues
- Whether the learned judge erred in finding that the respondents converted the development to Hotel Type apartments contrary to the permitted user.
- Whether the applicants were obligated to pay service charge for extended use beyond the permitted user.
- Whether the intended appeal has a high chance of success and would be rendered nugatory if the order for stay of execution is denied.
Reasoning
The court found that the applicants have demonstrated a high chance of success in their appeal and that the order for stay of execution is necessary to prevent the respondents from executing the decree and compelling the applicants to pay the decretal amounts.
Outcome
The motion is allowed.
Orders
- Stay of execution of the judgment and decree of the Environment and Land Court pending hearing and determination of the applicant's appeal.
- Deposit Kes 1,357,542 in a joint interest earning account with a reputable bank within 30 days from the date of this ruling.
Remedies
- Stay of execution of the judgment and decree of the Environment and Land Court.
- Deposit Kes 1,357,542 in a joint interest earning account with a reputable bank.
Loading judgment…