[2020] KECA 256 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

[CORAM: KOOME, SICHALE & KANTAI, JJ.A]

CIVIL APPLICATION NO. 136 OF 2019

BETWEEN

BEN NYAKUNDI............................................................................................APPLICANT

AND

RAJAB AHMEND KARUME............................................................1STRESPONDENT

THE CHIEF LAND REGISTRAR..................................................2ND RESPONDENT

THE ATTORNEY GENERAL..........................................................3RDRESPONDENT

THE INSURANCE TRAINING AND EDUCATION TRUST.......4THRESPONDENT

(Being an application for stay of the proceedings and execution pending appeal against

the ruling of the ELC (E. Obaga, J) dated 10th April, 2019

IN

NAIROBI ELC No. 816 of 2012)

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

RULING OF THE COURT

The applicant, Ben Nyakundi filed an application dated 28th September,2018in which he sought to be enjoined as an interested party inELC Case No.816 of 2012, (consolidated with ELC Case No. 47 of 2010).The application wasdismissed on10thApril, 2019byObaga, J.It is this dismissal that has precipitatedthe amended Notice of Motion before us dated11th July, 2019. The substantiveprayers sought in the motion are:

“

1. …

2. THAT this Honourable Court/Bench be pleased to grant and /or issue an order for stay of proceedings at the superior court in connection with ELC CASE NO. 816 OF 2012 as consolidated with ELC No. 47 of 2010 pending the hearing and determination of (a) this Application and (b) the intended appeal.

3. THAT this Honourable Court/bench be pleased to grant and /or issuean order for stay of execution of the ruling delivered on 10thApril, 2019 and the consequent Order dated 25thApril, 2019 pending the hearing and determination of (a) this Application and (b) the intended appeal.

4. THAT the costs of this application be provided for”.

The application was supported by the affidavit of Ben Nyakundi sworn on8thJuly, 2019. In paragraph 8 thereof, he decried the fact that the Judge haddismissed his application to be enjoined inELC Case No. 816 of 2012consolidatedwithELC No. 47 of 2010as an interested party.

The motion was opposed by all the respondents. The 1st respondent, RajabAhmed Karumefiled a replying affidavit sworn on9thJuly, 2019. He deponed thatELC No. 816 of 2012andELC No. 47 of 2010were at the tail end of the hearingsin the ELC. The affidavit in response to the motion on behalf of the 4threspondent,Insurance Training and Education Trust was sworn byDr. Ben Kajwang, it’sDirector, on3rdJuly, 2019. In paragraph 9 thereof he deponed that there was nopositive order capable of being executed arising from the ruling of10thApril, 2019.

Then there is an affidavit dated10thSeptember, 2019sworn byJoseph NdunguGathondi(the 7threspondent) on his behalf and for the 6threspondent,JaneWanjiru Ndumia. There is also a supplementary affidavit byBochere OmaribaAdvocate from the firm ofOgeto, Otachi & Company advocatesexplaining theirpredicament in obtaining proceedings that were not available in time in order forthem to prefer an appeal on behalf of the applicant.

The 1strespondent filed undated submissions contending that the applicantdoes not have an arguable appeal as his claim to title over the suit property isanchored on “…an unsigned and unregistered title that appears to have beendownloaded from google …” On the nugatory aspect, the 1strespondent submittedthat there was nothing to stay, as the order sought to be challenged is a negativeorder. In the 2nd & 3rdrespondents’ submissions dated4thMay, 2020, it wassubmitted that the proceedings in the ELC had been closed and were then at thesubmissions stage. The 2ndand 3rdrespondents further submitted that the titleallegedly acquired by the applicant had not been signed and executed so as to passthe legal test of being “registered”.

In the 4threspondent’s submissions, it was contended that the process ofallocation (if any) of the suit property was irregular/illegal. Further, that thehearings in the ELC had already been concluded.

The twin principles to be satisfied before a grant of stay of executionpending appeal is issued were summarized in this Court’s decision ofStanleyKang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR.Firstly, an applicanthas to demonstrate that he/she has an arguable appeal and secondly that theappeal will be rendered nugatory absent stay. The two limbs must both besatisfied.

Having considered the application, the grounds in support thereof, theaffidavits filed in reply by some of the respondents, the 1st, 2ndand 3rdrespondents’ as well as the 4threspondent’s written submissions, it is not disputedthat in the applicant’s notice of motion dated28th September, 2018, the applicantsought to be enjoined in theELC case No. 816 of 2012 (consolidated with ELC No.47 of 2010).This application was dismissed on10thApril, 2019. The dismissalbeing a negative order, in our view, there is nothing to stay as this was not apositive order capable of being executed. (SeeKenya Commercial Bank Limitedvs. Tamarind Meadows Limited & 7 others [2016] eKLR.

It is also doubtful whether the applicant has an arguable appeal given thefact that he placed reliance on ownership of the suit property on a title that is yetto be registered. In view of the above, we find that the applicant has failed todemonstrate that he has an arguable appeal that will be rendered nugatory, absentstay.

The upshot of the above is that we find no merit in the motion. It is herebydismissed with costs to the respondents.

It is so ordered.

Dated and Delivered in Nairobi this 23rdDay of October, 2020.

M. K. KOOME

...................................

JUDGE OF APPEAL

F. SICHALE

...................................

JUDGE OF APPEAL

S. ole KANTAI

...................................

JUDGE OF APPEAL

I certify that this is a truecopy of the original.

Signed

DEPUTY REGISTRAR