[2017] KECA 732 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

(CORAM: KOOME, OUKO & M’INOTI, JJ.A)

CIVIL APPEAL NO.40 OF 2016

BETWEEN

ALEX PUNGU & 106 OTHERS...………..…………….........….………APPLICANTS

AND

MUNYUA KIMANI.................................……….……..….....….….RESPONDENT

(Application for stay of execution pending the hearing and determination of an intended appeal from the judgment and decree of the Environment & Land Court at Mombasa, (Mukunya, J.) dated 6thNovember 2014

in

ELCCNo. 287 of 2008)

*************

RULING OF THE COURT

The 107 applicants in this application have evinced intention to appeal against the judgment and decree of the Environment and Land Courtat Mombasa (ELC)dated 6th November 2014, by lodging a notice of appeal on 12th November 2014 as required by rule 75 of the Court of Appeal Rules.They have followed up the notice of appeal by filing, on 1st July 2016, a Notice of Motion under rule 5(2)(b) of the rules of this Court praying for stay of execution of the said judgment pending the hearing and determination of their intended appeal.

By the impugned judgmentMukunya, J., ordered the applicants to vacate the property known as Plot No. 183/12 Section I Mainland North and or the 32 parcels into which it was subdivided (the suit property) within 45 days of the judgment, failing which they were to be evicted. Inexplicably it has taken the appellants one and half years from the date of the judgment to bring this application for stay of execution, begging the question whether, on account of such dilatoriness, they would be entitled tothe equitable remedy of stay of execution.

The background to the judgment that the applicants seek to stay is a suit filed by the respondent against the appellants on 27th July 2009praying, inter alia,for a declaration that he was the owner and entitled to exclusive possession of the suit property; a declaration that the applicants were trespassers thereon; an order for vacant possession and general damages for trespass. From his pleadings and evidence, the respondent purchased the suit property from one Amina Said Omar for Kshs 1 million and it was registered in his name on 26th September 2005. When he subsequently applied to subdivide the suit property and change its user from agricultural to residential, local leaders demanded that he surrenders part of the land to them, which proposal he flatly refused. Shortly thereafter the applicants invaded the suit property and violently resisted all attempts to evict them, compelling him to file the suit in the ELC.

In their defence, the applicants claimed to be entitled to be registered as owners of the suit property by adverse possession. However only one applicant,Gasper Gambo Myamawi (the 5th applicant) testified before the ELC. His evidence was that he owns a plot in the suit property, which he inherited from his deceased uncle more than 15 years ago, who in turn had leased the same from Amina Omar, the registered owner at the time. He testified further that the other applicants were living on the suit property, though the circumstances and the actual portions occupied by each applicant were not established.

On the basis of the evidence, the learned judge held that the applicants invaded and trespassed on the suit property in 2006, about one year after the respondent purchased it and that on the basis of the evidence of their one witness, he was a leasee rather than an adverse possessor, having purportedly inherited from his uncle a parcel leased from Amina Omar. The learned judge also found that the applicants did not prove adverse possession because the portions of the suit property allegedly occupied each them were not established.

In support of the application for stay of execution, the applicants submitted that their intended appeal was arguable because the trial court did not properly record the evidence of their onewitness; that the learned judge failed to consider the evidence adduced by their said witness; and he further erred by granting an order, which the respondent had not prayed for. As regards whether the intended appeal would be rendered nugatory in the absence of an order of stay of execution, it was submitted that if the applicants were evicted before the appeal was heard, it would be rendered nugatory were it eventually to succeed, because that is the only place where they have resident and have constructed a school and a place of worship.

The respondent opposed the application by attacking the competence of the intended appeal. It was submitted that the appeal was incompetent because the notice of appeal was filed out of the time prescribed by rule 75 of the rules of this Court and further that no appeal had been filed within 60 days of the filing of the notice of appeal as required by rule 82. We were accordingly urged to deem the notice of appeal as withdrawn under rule 83. It waslastly contended that the intended appeal was not arguable and that even if it was somehow to succeed, it would not be rendered nugatory.

We have carefully considered the impugned judgment, the application and submissions by learned counsel. We shall first dispose of the respondent’s arguments as regards the competence of the appeal. The impugned judgment was delivered on 6th November 2014. The notice of appeal was lodge and endorsed with a stamp by the Deputy Registrar on 12th November 2014, which is within 14 days of the date of the lodging of the notice of appeal. The respondent, in our view is desperately hanging on what appears to be an obvious typographical error by which the notice of appeal is dated 26th November 2014. The crucial date is the date when the notice of appeal was lodged in court, which is 12th November 2014. Even if we were inclined to agree with the respondent, which we do not, we would not strike out the notice of appeal on account of such a technicality. (See Nicholas Salat v. IEBC & 7 Others, CA (A) No. 228 of 2013).

Secondly, the rule 84 obliged the respondent, if he was contending that the appellants had not taken the necessary steps within the prescribed time, to file an application to strike out the notice of appeal within 30 days of service of that notice, otherwise he is precluded from raising the issue. The respondent has not complied with that rule and therefore cannot be heard to complain in this appeal.(See National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another, CA No. Nai. 238 of 2005).

As regards whether the appellants have failed to file their appeal within 60 days as required by rule 82, the record indicates that they applied for certified copies of the proceedings on 28th November 2014, which is within the 30 days required by the proviso to that rule. There is no complaint by the respondent that the letter bespeaking the proceedings was not served on him. In Margaret Bashforth v. Worburn Estate Ltd, CA No. 5 of 2015, this Court stated as follows on the requirements and effect of rule 82:

“It is trite that under rule 82 (1) of the rules of this Court an appeal must be filed within 60 days from the date of the lodging of the notice of appeal. Where a party applies within 30 days for certified copies of proceedings in writing and serves the opposite number with a copy of the letter, the 60 days for filing the appeal will start to run from (the) date when the intended appellant is advised by the Registrar that the proceedings are ready for collection.”

In any event, as we have already stated, the respondent’s remedy, if he claims that the appellants have failed to file the appeal within the prescribed period, is to file an application to strike out the appeal or for the court to deem the appeal as withdrawn.

To entitle the applicants to an order of stay of execution, they must satisfy us on two fronts, namely that their intended appeal is arguable, and that if we do not grant an order of stay of execution, the appeal will be rendered nugatory if it succeeds. (See Jaribu Holdings Ltd v. Kenya Commercial Bank Ltd, CA. No. 314 of 2007).The applicants must satisfy us on both of those issues and it will not suffice to satisfy us on only one of them. While an arguable appeal need not disclose a multiplicity of issues and is not one, whichmust necessarily succeed at the hearing, nevertheless it must disclose at least one bona fideissue that deserves to be heard by the Court.

Among the threegrounds, which the applicants rely upon to demonstrate an arguable appeal is that the learned judge did not record and consider all the evidence adduced by their witness. There is no indication however, what evidence was omitted from the record or which was not considered. As this Court stated inFrancis Sirma Kios v. Kibore Sigilai, CA. No. Nai. 50 of 2013, it must go by the certified record kept by the trial court and not by any other unofficial or uncertified record. In this case, it is instructive too that the appellants do not identified or even remotely allude to the evidence that they allege was not recorded or considered by the court. That generalized complaint by the appellants is replicated in respect of the assertion that the learned judge granted a remedy that was not prayed for. Again, that gratuitous remedy complained of is not identified. Our own perusal of the amended plaint indicates that the respondent prayed for a declaration that he was entitled to the exclusive possession of the suit property; a declaration that the applicants were trespassers thereon; a permanent injunction to restrain the applicants from remaining or continuing in occupation of the suit property; an order fir vacant possession; general damages and costs. We are unable to find in the judgment the order that the learned judge granted, which was not prayed for.

We are not satisfied that the applicants have demonstrated to us any bona fide issue that they intend to present for consideration and determination by this Court. Having failed to convince us that they have presented an arguable appeal, we do not have to dwell on the second limb of the considerations under rule 5(2)(b). (See Kenya Ports Authority v. James Nderitu Gachagua t/a Jagar Consultants, CA. No. Nai. 181 of 1998). This application stands dismissed with costs.

Dated and delivered at Mombasa this 17thday of February, 2017

M.K. KOOME

……………………………………………

JUDGE OF APPEAL

W. OUKO

………………………………………….

JUDGE OF APPEAL

K. M’INOTI

……………………………………………

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR