[2008] KECA 34 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

CIVIL APPLI NO. 302 OF 2007 (UR 205/2007)

CHARLES WAHOME GETHI …………………………………… APPLICANT

AND

ANGELA WAIRIMU GETHI …………………………..……… RESPONDENT

(Application for stay of execution pending the lodging, hearing and determination of an intended appeal from the judgment of the High Court of Kenya at Nairobi (Lady Justice Rawal) dated 25th day of October, 2007

in

H.C.C.C. NO. 579 OF 2003)

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

RULING OF THE COURT

This is an application under Rule 5 (2) (b) of the Court of Appeal Rules for an order that the execution of the judgment of the superior court (Rawal J) delivered on 25th October, 2007 in H.C.C.C. No. 579 of 2008 be stayed pending hearing and determination of an intended appeal against that judgment.

The respondent is the registered owner by transmission of land reference No. 7381 situated in Nyandarua District comprising of 300 acres. The land was originally registered in the name of the respondent’s husband (Gethi) who died sometime in 1994. It seems that the respondent obtained a Grant of Probate of the will of her husband sometime in August, 1999 and was subsequently registered as the proprietor of the land.

The applicant is a brother to the deceased husband of the respondent. It was common ground at the trial that the respondent’s husband took the applicant to the land as a caretaker sometime in 1971; that the farm was being used mainly for dairy farming; that the applicant occupied the main house and was allowed to cultivate subsistence crops and to keep his cattle in the farm; that the applicant brought his family (wife) to the land in or about 1990; that after the respondent obtained the grant of probate he asked the applicant to vacate the land; that the applicant vacated the main house which is at the Matara side of the farm in about 1999 and occupied a portion of the farm at the Pepsi side of the farm; and that the applicant has been in possession of a portion of the farm at the Pesi side where he had put structures.

By the suit in the superior court, the respondent sought a mandatory injunction compelling the applicant to vacate the land and an injunction to restrain the applicant from entering into the land.

It seems from the judgment of the superior court, that the applicant claimed by way of defence, among other things, that he was put in possession of 6 acres of land by his deceased brother as a tenant at will in 1970; that he has been in continous possession of the 6 acres for 33 years; that he has fenced the portion in respect of the 6 acres; done terracing; erected four houses; built sheds for cattle and planted fruit trees and that the respondent claim was barred by Limitation of Actions Act.

The superior court in allowing the respondent’s claim made findings, inter alia, that the applicant entered into the land with the consent of his brother as a tenant at will; that the tenancy was terminated by the death of his brother in 1994; that the applicant had not proved that he was in adverse possession of the portion of six acres for 12 years prior to the date of the suit and that the claim of right to the land by adverse possession was merely raised by way of defence.

The applicant being aggrieved by the decision of the superior court duly filed a notice of appeal and now prays that the execution of the judgment of the superior court be stayed pending appeal.

The principles which guide the court in exercising its unfettered discretion under Rule 5 (2) (b), to grant a stay of execution; a stay of proceedings or an injunction as the case may be, are well established. The applicant must demonstrate, among other things, that the intended appeal or appeal is arguable, that is to say, it is not frivolous and that unless the order sought is granted, the appeal, if successful would be rendered nugatory.

The applicant deposes in the supporting affidavit that he has an arguable appeal. He has annexed a draft memorandum of appeal which shows that the applicant will mainly be contending in the appeal that, the superior court erred in law and in fact in failing to find that he is entitled to 6 acres which he occupies by adverse possession.

Mr. Njogu, learned counsel for the applicant, submitted that, the evidence showed that while the applicant settled on Mutara side of the farm with permission, he settled on the Pepsi side of the farm without permission and that the applicant has acquired the land at the Pepsi side by adverse possession. Mr. Kitheka, learned counsel for the respondent on the other hand, contended that the intended appeal is frivolous. He pointed out that the applicant did not file any claim to the land by adverse possession and that the applicant only used the respondent’s suit to claim that the respondent suit was time barred. At the hearing of the application the applicant’s counsel disclosed that the applicant has already filed Civil Appeal No. 7 of 2008. Since the appeal has already been filed, it would be preemptory and indeed, prejudicial to the applicant for us to examine the evidence at this stage and make a finding whether or not the appeal is frivolous. In addition, if we were to do so, we would not only usurp the jurisdiction of the court that will ultimately hear the appeal but also embarrass that court. We will in the circumstances assume that the appeal is arguable. We however, recognize that even if the appeal ultimately succeeds, the appellate court is unlikely to make a declaration that the applicant has acquired the land in dispute by adverse possession because the applicant has not, admittedly, filed his own suit for such a declaration.

The applicant deposes that he will suffer substantial loss if the execution of the judgment is not stayed as he will be evicted and his house demolished. It is true, as was held in Mukuma vs. Abuoga [1988] KLR 645 that suffering of a substantial loss before the appeal is heard may render an appeal, if successful, nugatory. The respondent deposes that the applicant lives in some wooden semi-permanent structures; that applicant has an adjacent expansive parcel of land where he has a permanent house and that on a balance of convenience she stands to suffer more if the application is allowed.

The respondent is the registered owner of the land comprising of about 300 acres. The applicant occupies a portion of that land. When the suit for eviction was brought against him, he claimed that the respondent’s suit was time barred under the Limitation of Actions Act and that he has acquired the portion of land in his possession by adverse possession. Yet he has not filed a suit to claim the land by adverse possession. Currently he has no title to the land he is occupying. He has semi-permanent structures on the disputed portion but he has not given the value of the structures or shown that the respondent has no means to pay compensation in the event that the appeal succeeds. The applicant does not claim that the respondent intends to sell the portion of land in dispute and that it will not be in existence by the time the appeal is determined. He did not file an affidavit to refute the deposition of the respondent that he has an adjacent expansive land with a permanent house. In the superior court, it was established that the applicant has another land in Nyeri. In the circumstances of this case, the applicant would suffer substantial loss rendering the appeal, if successful nugatory only if the suit land is disposed of before the appeal is determined. The applicant does not claim that the suit land would be disposed of. The applicant has not in our view, established that unless stay is granted, he will suffer substantial loss and that the appeal, if successful would be rendered nugatory.

In the result, the application is dismissed with costs to the respondent.

Dated and delivered at Nairobi this 28th day of November, 2008.

E. O. O’KUBASU

……………………………

JUDGE OF APPEAL

E. M. GITHINJI

……………………………

JUDGE OF APPEAL

J. W. ONYANGO OTIENO

……………………………

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR