[2019] KEELC 2206 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC APPEAL CASE NO. 43 OF 2018

GEORGE MWANGI MUNYUA.................................1ST APPELLANT/APPLICANT

DAVID GATHUMBI MUNYUA................................2ND APPELLANT/APPLICANT

MARY NJERI LUI......................................................3RD APPELLANT/APPLICANT

ROBERT WAWERU MUNYUA................................4TH APPELLANT/APPLICANT

CHARLES MUNYOROKU.......................................5TH APPELLANT/APPLICANT

BETH NJERI ONGONGI..........................................6TH APPELLANT/APPLICANT

ALBERT NJAHIA OGONGI....................................7TH APPELLANT/APPLICANT

VERSUS

STANLEY KIARIE KIMANI............................................................1ST RESPONDENT

DORCAS WANGUI MUNYUA......................................................... 2ND RESPONDENT

RULING

The Appellants/Applicants herein filed a Notice of Motion Applicationin Gatundu MELC No. 9 of 2018, wherein they sought to be enjoined as interested parties in the suit. The said Application for joinder is dated 25th October, 2018 and a Ruling dismissing the same was issued on 3rdDecember, 2018. However, the Subordinate Court had entered Judgment in favour of the 1st Respondent on 25th June, 2018 and before execution of the said Decree, the Appellants herein filed the Notice of Motion dated 25th October, 2018.

After the dismissal of the said Notice of Motion on 3rd December, 2018, the Appellant filed the instant Notice of Motion dated 14th January, 2019, and sought for Stay of proceedings in MELC No. 9 of 2018 at Gatundu Law Courts, sought also for stay of execution of the Judgment/Decree in MELC No. 9 of 2018, at Gatundu Law Courts pending the hearing and determination of the appeal and for any other Orders that the Court may deem fit to grant.

The Application is premised on the grounds stated on the face of the application among them that they filed a Notice of Motion dated 28th October, 2018 seeking to be enjoined in MELC No. 9 of 2018 at Gatundu Law Courts with intention of Challenging an alleged sale of the suit property Ndarugu/Mbogoro/T144 by the 2nd Respondent to the 1st Respondent. However, the said application was dismissed on 3rd December,2018. That 1st Respondent is in the process of executing the said Decree and if the orders sought are not granted, they stand to suffer irreparable loss and damage since the suit property is a family land and the applicants are on the verge of losing the same. That their appeal has high chances of success and the Respondents are unlikely to compensate them with costs in the event the appeal succeeds. Further that the Respondents will not suffer any prejudice and the balance of convenience tilts in their favour.

The application is also supported by the affidavit of George Mwangi Munyua the 1st Applicant herein who reiterated the averments made on the grounds in support of the application.

The application is contested and 1st Respondent Stanley Kiarie Kamaufiled a Replying Affidavit dated 27th February, 2019and averred that he bought the suit property from the 2nd Respondent on 12th October, 2015 and paid the full purchase price of Kshs. 575,000/=. However the 1st Respondent could not transfer the suit property to her because she alleged that she was not in possession of the original title deed. Consequently ,the 1st Respondent filed Gatundu MELC No. 9 of 2018 and the 2nd Respondent filed a Defence wherein she admitted having sold the suit property to the 1st Respondent but could not effect the said transfer because the original title deed was with a 3rd party. Thereafter, Judgment on admission was entered on 25th June, 2018. However, the Applicant sought to be enjoined as interested parties after the suit had been filed which application was dismissed. He further averred that he is in possession of the suit property and that the same is registered in his name as is evidence from the official search dated 31st January, 2019. He urged the Court to reject the said application.

The 1st Respondent filed the grounds of opposition dated 27th February, 2017 and averred;

1. The Appellants/ Applicants lack locus to file the appeal as they are not a party to Gatundu MELC case no. 9 of 2010

2. The Appeal was filed without leave of the Court.

3. The Memorandum of Appeal was filed on 20th December 2018 and not served within the stipulated time.

4. The Appellants have no proprietary rights over the suit property

5. The Appellants/ Applicants have no basis to file an appeal

6. The Appellants have no property.

The Application was canvassed by way of written submissions which this court has carefully considered and renders itself as follows:-

There is no doubt that the 2nd Respondent did sell the suit land to the 1st Respondent. There is no doubt that a Judgment was entered in favour of the 1st Respondent on 20th June, 2018. Further the applicants herein had sought to be enjoined in the Gatundu MELC No. 9 of 2018 after the Judgment and their Application was rejected and/or dismissed.

It is also evident that the 1st Respondent has now been registered as the proprietor of the suit property as is evident for the Certificate of Official Search dated 31st January, 2019. It is also evident that the suit land was registered in the name of 2nd Defendant in 1966. The 2nd Respondent was therefore the registered owner of the suit property prior to 2015.

The Applicants did not seek to be enjoined in GatunduMELC of 2018, when the said suit was initiated. However they sought to be enjoined at the execution stage.

For Stay of execution, the Law is very clear on the principles to be considered. See Order 42 Rules 6 (2) which provides;

“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.’’

Further in the case of Kenya Power & lighting Co. Ltd VersusEsther Wanjiru Wokabi (2014) elects the Court held that;

“To my mind the Court’s discretion in deciding whether or not to grant stay of proceedings as sought in this application must be guided by any of the following main principles;

a) Whether the applicant has established that he/she has a prima facie arguable case.

b) Whether the application was filed expeditiously and;

c) Whether the applicant has established sufficient cause to the satisfaction of the Court that is in the interest of justice to grant the orders sought

The court has considered the Pleadings herein and the annextures thereto.it is evident that the Decree sought to be stayed has already been executed and effected. The suit land is now registered in favour of the 1st Respondent. The Applicants cannot stay what has already been effected. See the case of Co-operative Bank of Kenya Limited …Vs… Banking Insurance & Finance Union (Kenya) [2015] eKLRwhere the Court held that;

“This court also appreciates the need to avoid giving orders in vain. InWilliam Lerikan Konchellah & another …Vs… Julius Tabarai Ole Maito Tampushi [2014] eKLRthe court in refusing to grant stay under Rule 5 2 (b) held that courts do not act in vain and therefore cannot grant stay for an event that has already taken place.” Similarly, in International Centre for Policy & Conflict…Vs… Kamlesh Mansukhlal Damji Pattni & 5 others [2013] eKLRthe Court stated:“There is no doubt that the criminal case facing the Respondents was terminated in execution of Mutava J’s judgment. The sureties have already been discharged by the court. We are not persuaded that there is anything to stay in this matter”.

Further the Applicant are not parties in Gatundu MELC No. 9 of 2018. They cannot seek for Stay of execution in a matter where they are not parties. See the case of Zephir Holdings Limited …Vs… Mimosa Plantations Limited, Jeremiah Matagaro & Ezekiel Misango Mutisya [2014] eKLRwhere the Court held that;

“I have perused the record, and it is clear that neither the 1st nor 2nd interested parties participated in the suit. Indeed they were not parties in the cause of action of the suit. The 2nd Interested Party is a purchaser of the suit property in a public auction as the highest bidder. The public auction and the sale of the suit property were sanctioned and approved by the Court. The claim by the 1st Interested Party is that the Plaintiff wrongfully attached the suit property believing the same to be that of the Defendant. It was argued that, at the point of sale, the attached property legally belonged to the 1st interested party. Those points are well put. But, the 2nd interested party is saying that the court did not sanction the joinder of both interested parties in this suit, which means, therefore, that the 1st interested party cannot legally and technically bring the application before the court without first seeking the leave of court to be enjoined in the case. A proper party is one who is impleaded in the suit and qualifies the thresholds of a plaintiff or defendant under Order 1 rule 1 and 2 respectively, or as a third party or as an interested party and whose presence is necessary or relevant for the determination of the real matter in dispute or to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit.’’

The Court finds that the Appellants/Applicants herein cannot seek for Stay of a decree in a matter whenever they are not parties yet. The Court finds that the Applicants are also not registered owners of the suit property and there was no evidence of trust at all.

The Applicants are challenging the order of dismissing their non-joinder to the suit. That issue should be addressed first before any order of Stay of execution can be addressed.

For the above reasons the court finds the Appellants/Applicants Notice of Motion application dated 14th January 2019 is not merited. The said Application is dismissed entirely with costs to the Respondent’s.

The Appellants should strive to prosecute their appeal expeditiously. For the above reasons, the Appellants are directed to file their Record of Appeal within a period of 30 daysfrom the date hereof. The matter to be mentioned on 17th October 2019 before the Deputy Registrar to confirm such compliance and for further directions.

It is so ordered.

Dated, Signed and Delivered at Thika this 15th day ofJuly 2019.

L. GACHERU

15/7/2019

JUDGE

In the presence of

Mr. Maina holding brief for Mr. Njehu Ndungu for the applicant

Mr. Kimathi for 1st Respondent

Mr. Kimathi holding brief for Mr. Njiri for 2nd Respondent.

Lucy-Court Assistant

Court: Ruling read in open Court in the presence of the above Advocates.

L. GACHERU

15/7/2019

JUDGE