[2022] KEELC 603 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT THIKA

ELCA NO 73 OF 2021

BENSON KATHIGA NTHAMBIRI.........................................APPLICANT/APPELLANT

VS

PATRICK KARIUKI MUIRURI............................................................1ST RESPONDENT

THE LAND REGISTRAR, THIKA........................................................2ND RESPONDENT

THE HON ATTORNEY GENERAL.......................................................3RD RESPONDENT

RULING

1. Vide Section 3A of the Civil Procedure Act, the Applicant/Appellant moved the Court vide this application dated the 22/10/2022 and filed on even date. The Applicant sought the following orders;

a. Spent

b.That the Court to order the 2nd Respondent to reverse the changes made on the green card of the parcel No THIKA/MUN/BLOCK19/778 (the suit land) as the trial Court never sanctioned any changes on the register.

c.The Court to order the 2nd Respondent to register a prohibitory order on the green card of the suit land.

d. The Court to order a stay of execution of the decree in MCLE No 96 of 2018 until the hearing and determination of the appeal.

2. The application is grounded on the reasons annexed to the said application and cited in the Supporting Affidavit of the Applicant. He avers that the judgement of the Court delivered on the 17/9/2021 never ordered any changes to the title of the suit land and accused the Land Registrar with unlawful interference of the said title despite the 1st Respondent having not proffered any counterclaim in the suit in the lower Court. That there were no positive orders granted by the trial Court capable of implementation in the manner the 2nd Respondent chose to and that if the changes are allowed to subsist his appeal stands to be rendered nugatory. He accused the 1st and 2nd respondents of acting malafides and in collusion in interfering with the green card.

3. The application is opposed by the 1st Respondent vide a Replying Affidavit sworn on the 5/11/2021. He deponed that the application is full of falsehoods meant to mislead the Court. That the Applicant has misinterpreted the judgement in the lower Court where the suit was dismissed in its entirety and therefore the allegations of malafides conduct of the 2nd Respondent is misplaced. That on dismissal, the suit reverted to the Respondent.

4. In addition, the Respondent stated that the application has been overtaken by events as he has already transferred the suit land on the 14/10/2021 to a third party namely Edward W Githua as shown on the official search dated the 18/10/2021.

5. That the suit was dismissed via negative orders of dismissal and there is nothing to stay.

6. The 2nd and 3rd Respondents opposed the application vide their grounds of opposition dated the 8/11/2021 and filed on the 11/11/2021. That there was no order stopping the 2nd Respondent from effecting the changes to the register in line with his statutory duties as set out in the Land Registration Act.

7. On the 11/11/2021 the parties took directions before the Judge and elected to canvass the application by way of written submissions. By the time of writing the Ruling none of the parties had complied. I shall then determine the application without the benefit of the submissions but paying regard to the pleadings on record.

8. The issues for determination in my considered view are;

a. Whether the Court should reverse the changes to the register to the pre -judgement date in the MCLE No 96 of 2018.

b. Whether the Court should order the registration of a prohibitory order on the suit land.

c. Whether the Applicant is deserving of an order of stay of execution of the decree issued in the MCLE No 96/2018.

9. The background of this case has been captured in the trial Court’s judgment delivered on the 19/9/2021 which has provoked the appeal filed vide the Memorandum of Appeal filed on the 29/9/2021. In addition to the appeal, the Appellant/Applicant has filed the application seeking the orders set out in para 1 above.

10. According to the undisputed copy of the green card on record the Applicant’s case in the trial Court was that he acquired the suit land by way of purchase from the 2nd Respondent through one Rael Njura Kagina who held the title as her trustee. That he paid Kshs 600,000/- leaving the balance of Kshs 250,000/- payable upon the issuance of the land control board consent. That the 1st Respondent executed the agreement of sale but later turned around and accused the said Rael of fraudulently transferring the land to herself. On hearing the matter the Court dismissed the case of the Applicant.

11. As to the first issue, this Court is being called upon to reverse the changes to the register to the pre judgement in the THIKA MCLE No 96 of 2018 stage. This would be a drastic decision which the Court is incapable of making at the interlocutory stage especially now that the Applicant has filed an appeal. This prayer is therefore struck out.

12. With respect to the second issue which is whether the Court should order the registration of a prohibitory order on the suit land, the Applicant has not laid a basis for this prayer save to say that the land should be preserved in view of his arguable appeal.

13. The 1st Respondent has informed the Court in his Replying Affidavit that the suit land has been transferred post judgment to a third party. The third party has not been enjoined in the suit so as to afford him the opportunity to defend himself. In my considered view this prayer is untenable. It is dismissed.

14. The principles governing the granting of orders for stay of execution pending appeal are provided for under Order 42 rule 6 of the Civil Procedure Rules as follows: -

“6. Stay in case of appeal [Order 42, rule 6. ]

(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have such order set aside.

No order for stay of execution shall be made under subrule (1) unless—

(a) the Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and

(b) such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.”

15. In the case ofButt v Rent Restriction Tribunal [1979] eKLRthe Court reiterated the tried principle that the power to grant or deny stay of execution is a discretionary power, to be exercised in favour of a deserving party. Stay of execution is therefore not an absolute right and a party pursuing this relief must demonstrate to the Court that they merit it.

16. It is undisputed that the judgement was delivered on the 27/9/2021 and this application was filed on the 22/10/2021. That application was therefore made without delay.

17. The second issue that this Court must address its mind to is whether the Applicant has demonstrated a substantial loss if the prayers are not granted. What is substantial loss is a matter of fact which must be raised in the Supporting Affidavit and further supported by evidence and must be specifically demonstrated to the satisfaction of the Court.

18. In determining an application for stay of execution, the Court must also balance two competing rights; that of the jubilant party with a victory in his pocket and the right of the losing party to pursue an appeal. In the case of Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLR the Court set out thus

“… in an application for stay, there are always two competinginterests that must be considered. These are that a successful litigant should not be denied the fruits of his judgment and that an unsuccessful litigant exercising his undoubted right of appeal should be safeguarded from his appeal being rendered nugatory.These two competing interests should always be balanced. … in a bid to balance the two competing interests, the Courts usually make an Order for suitable security for the due performance of the Decree as the parties wait for the outcome of the Appeal.”

19. In this case it is clearly evident that the judgment has long been executed and further that the suit land has been transferred to a third party. There is therefore nothing to stay at this point in time.

20. Having considered the application, the pleadings on record and the relevant law, the Court has come to the conclusion that the application is not merited and the same is dismissed with costs in favour of the Respondents.

21. It is so ordered.

DELIVERED, DATED AND SIGNED AT THIKA THIS 25TH DAY OF MARCH 2022 VIA MICROSOFT TEAMS PLATFORM.

J. G. KEMEI

JUDGE

Delivered online in the presence of;

Ms. Olum for Plaintiff

1st Plaintiff – Tumu

2nd & 3rd Respondent – AG is absent

Ms. Phyllis – Court Assistant