[2004] KEHC 1298 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL DIVISION, MILIMANI

CIVIL CASE NO. 983 OF 1997

ABUJAR INVESTMENT SERVICES LTD.……………..1ST PLAINTIFF

HALAIKI LIMITED……………………………………….2ND PLAINTIFF

VERSUS

SAMUEL NGANDU WAWERU T/A

NGANDU BEE KEEPING FARMING

INDUSTRIES………………………………………………….DEFENDANT

R U L I N G

This is an application by the Defendant (by Chamber summons dated 17. 12. 2003) for stay of execution of the orders of this court issued on 20th November, 1998. The stay is sought pending hearing and determination of Nairobi HCCC No.667 of 1996. The grounds for the application are that the Defendant is the rightful owner of LR. No. 4953/2805; that the Plaintiffs have been asked to surrender the title they hold in order to allow the Commissioner of Lands to revoke and/or cancel the same; and that the Plaintiffs have no good title and in any event the Defendant’s suit, Nairobi HCCC No.667 of 1996, is pending for hearing. The application is said to be brought under Order XXI, rule 25 of the Civil Procedure Rules (the Rules) and also under section 3A of the Civil Procedure Act, Cap 21(the Act). There is an affidavit of the Defendant sworn on 17th December, 2003. It essentially gives the background of the dispute between him and the Plaintiffs and further elaborates the grounds of the application.

The application is opposed by the Plaintiffs principally upon the ground that the Defendant was evicted from the suit premises on 28th March, 2003 by order of the court and the Plaintiffs put into possession. That ground is contained in the replying affidavit sworn by one WILFRED KUNGU KIARIE sworn and filed on 19th January, 2004.

I have considered the submissions of the learned counsels appearing. Mr. Njogu, counsel for the Defendant, presented the application as if it had been brought under section 6 of the Act. That section provides for mandatory stay of suit where the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.

As pointed out by Mr. Kibet for the Plaintiffs, the application is not brought under the aforesaid statutory provision. Furthermore, argued Mr. Kibet, the present suit is not pending and there cannot be any trial of it to be proceeded with as the suit was determined on 20th November, 1998 by the court (Mulwa J.).

I have considered the submissions of the learned counsels. I have also perused the court record. The 1st Plaintiff filed suit herein for vacant possession of the suit land, L.R. No.4953/2805, Thika. It also sought general damages for trespass. The Defendant filed defence and denied that the Plaintiff was the owner of the land. He also denied to have entered or remained in the land, or that he was a trespasser therein. Subsequently the 2nd Plaintiff was added in the suit after the 1st Plaintiff had transferred the land to it. It would appear that the main suit has never been heard. But by notice of motion dated 18th June, 1997 (as amended on 12th October, 1998) the Plaintiffs sought the order that the Defendant do forthwith and unconditionally reinstate and restore full possession of the land unto the Plaintiffs. That application was allowed as prayed by Mulwa, J. on 20th November, 1998. The main relief sought in the suit by the Plaintiffs, that is possession of the suit land, was thus effectively determined at that interlocutory stage. On 5th April, 2000 Mulwa, J. issued an order for the eviction of the Defendant from the suit land. I am satisfied by the affidavit of WILFRED KUNGU KIARIE already mentioned that the Defendant was indeed evicted from the suit land on 28th March, 2003 and the Plaintiffs put into possession. The said KIARIE is the court bailiff who carried out the eviction.

That being the position, the order of the court dated 20th November, 1998 has already been executed. Nothing of it remains to be executed. An order of stay would in the circumstances be in vain; and the court does not act in vain.

I therefore find no merit in the application. It is hereby dismissed with costs. Order accordingly.

Dated and Signed at Nairobi this 3rd day of November, 2004.

H.P.G. WAWERU

JUDGE