[2010] KEHC 515 (KLR)

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT NO. 123 OF 1998

GATONGU FARMERS CO. LTD..............PLAINTIFF/RESPONDENT

VERSUS

AVTAR SINGH CHAUHAN &

5 OTHERS..............................................DEFENDANTS/APPLICANTS

RULING

By the Notice of Motion dated 16/4/2010, the applicants seek an order of stay of execution of the judgment and decree herein, pending the hearing and determination of the appeal and that the court do order the OCPD, Nakuru Central Police Station and OCS Kirengero Police Station, to ensure compliance with the order. The application which was brought pursuant to Order 41 Rule 4 is supported by the affidavit of the 1st applicant Avtar Singh Chauhan on behalf of himself and the others, who claims to be the registered owners of L.R. No. Kabazi/Kabazi Block 1/433 Gatongu and L.R. Kabazi/Kabazi Block 1/1441, Gatongu. He exhibited copies of titles, ASCI. He also deposed that they are the registered proprietors of Hyrax High School as evidenced by certificate ASCII. The applicants sued the respondents in High Court Civil Case No. 368/1998 seeking an injunction to restrain the respondents from interfering with the suit land and general damages, whereas the respondent sued them in HCC 123/98 where the respondents sought a declaration that the suit land belongs to the defendant company, that the fraudulent transfer of the land be annulled, titles cancelled and that an injunction issue restraining the applicants from interference with the suit land. The two cases were later consolidated, proceeded to hearing and judgment was entered against the applicants. The applicants were aggrieved by the said judgment and they claim to be threatened with eviction as the respondents have obtained a decree. Avtar further deponed that they had invested in the school for the last 25 years and if evicted, they stand to suffer irreparably as there are students in the school who have enrolled for examinations this year and the teachers and staff will lose their sources of livelihood. Mr. Kinyanjui, counsel for the applicants urged that this application relates to HCC No. 123/1998 alone since, there was no prayer for vacant possession and the court never made an order that the respondent gets possession. Counsel also urged that they had moved with speed to file this application and were prepared to give any security as the court would direct.

The application was opposed and two affidavits were sworn by Warege Gathuri on 28/4/2010 and 3/6/2010, Mr. Waiganjo. counsel for the respondent urged that this application relates to HCC No. 123/98 where the applicantss sought to restrain the respondents from collecting rents and that the court cannot restrain the respondents from collecting rents. Counsel urged that they are not opposed to stay provided certain conditions were given. Counsel urged that the applicants should be ordered to pay Kshs.1,014/- in arrears of rent not paid for 10 years and should continue to do so as and when rent falls due, as the rents are a nominal annual figure of Kshs.6,000/- per month. The respondent denied the applicants’ contention that the respondents earlier disobeyed a court’s order but that it was all a mistake which was conceded and the respondents apologized and the issue was closed. Counsel for the respondent also submitted that the school no longer exists as there is not a single student left in the school and that they do not require him to move out but the applicants should pay rent.

Judgment herein was granted on 9/4/2010 and the applicants moved with alacrity and filed this motion within a week. It was made timeously.

The respondents are not opposed to stay being granted save that they want some conditions to be met. The only issue before this court is therefore whether the applicants should avail security for the due performance of the decree and what type of security. The court therefore need not delve into other issues as to whether or not stay should be granted. The respondents have deponed and the applicants have in their further affidavit agreed that the school is not operational as the students are no longer at the school. Each party blames the other for the closure of the school. That is neither here nor there. The respondents have a judgment/decree in this matter while the applicants are aggrieved by that judgment/decree. The applicants want to exercise their right of appeal. The property is lying idle with no ongoing activities due to these proceedings. The applicants are ready and willing to comply with any order as regards security. The interests of both parties need to be protected so that the substratum is not destroyed. As I have pointed out earlier there is judgment in favour of the respondents. It claims rents for the years it has been kept out of the suit property. The respondent is a company and the applicants have not led any evidence that the company’s is impecunious and not able to repay the money in the event the appeal succeeds. In doing my best to balance the interests of both parties, I direct that the applicants deposit in this court the sum of Kshs.500,000/- as security for due performance of the decree and Kshs.500,000/- be paid to the respondents within 21 days. The applicants’ prayer that the respondents should not demand rent was dismissed by the court. It therefore means that the respondents are entitled to rents. It is only fair that the rent of Kshs.6,000/- be paid in court from the date of the court’s judgment on 9/4/2010 till the appeal is heard and determined.

In sum, I grant stay on condition that Kshs.500,000/- is deposited in court within 21 days hereof and a similar amount paid to the respondent within 21 days. Further, to the above the applicants do deposit a sum of Kshs.6,000/- per month with effect from the date of judgment on 9/4/2010 till the hearing and determination of the appeal. I decline to make any orders directing the police to supervision of the orders. Costs will abide the appeal.

DATED and DELIVERED this 26th day of November, 2010.

R.P.V. WENDOH

JUDGE

PRESENT:

Mr. Rabera holding brief for Mr. Kenyanjui for the plaintiff

Mr. Nyambane holding brief for Mr. Waiganjo for the defendants