[2025] KEELC 50 (KLR)

Githu v Koigi (Suing as the legal representative of the Estate of Paulina Wanjiku Wabacha - Deceased) (Environment and Land Appeal E045 of 2023) [2025] KEELC 50 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 50 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment and Land Appeal E045 of 2023

BM Eboso, J

January 16, 2025

Between

Raphael Githu

Appellant

and

Teresiah Wanjiku Koigi (Suing as the legal representative of the Estate of Paulina Wanjiku Wabacha - Deceased)

Respondent

Ruling

1. Falling for determination in this ruling is the appellant’s amended notice of motion dated 4th December 2023 through which he seeks an order staying execution of the Judgment, Decree and all consequential orders issued in what he describes as “Thika MCELC 94 of 2020”, pending the hearing and determination of Thika P&A 580 of 2014. In addition, the appellant seeks a temporary injunction restraining “the plaintiff” together with his agents, employees and assigns against evicting “the defendants” from land parcel numbers Ruiru Mugutha 4048 and Ruiru Mugutha 4049 [referred to in this ruling as “the suit properties” or “the suit land”] pending the hearing and determination of this appeal. The application was premised on the grounds set out in the motion and in the appellant’s supporting affidavit dated 4th December 2023. It was canvassed through written submissions dated 8th February, 2024.

2. The case of the appellant/applicant is that the trial court decreed his eviction from the suit properties upon expiry of 60 days. Dissatisfied with the Judgment of the trial court, he brought this appeal. He contends that the 60 days lapsed on 6th November, 2023. It is his case that he resides on the suit land with his family and he has heavily invested on the suit land through development of permanent structures. He contends that he will suffer substantial loss if he is evicted from the land.

3. The respondent opposed the application through a replying affidavit dated 25th July 2024 and written submissions dated 9th August 2024. The case of the respondent is that, the applicant is a trespasser on the suit land. She contends that the application is a delay tactic employed by the applicant, adding that the application was brought in bad faith. The respondent contends that the applicant has not satisfied the criteria for grant of an order of stay of execution by a first appellate court pending the hearing and determination of an appeal by the first appellate court. She urges the court to reject the application.

4. The court has considered the application, the response to the application, and the parties’ respective submissions. The court has also considered the relevant legal frameworks and jurisprudence. The two key issues that fall for determination in this ruling are: (i) Whether the application satisfies the criteria for granting an order of stay of execution by a first appellate court pending the disposal of an appeal before it; and (ii) Whether the application satisfies the criteria for granting an interlocutory injunction by a first appellate court pending the disposal of an appeal before it. The two issues will be analyzed and disposed sequentially in the above order.

5. Does the application satisfy the criteria for granting an order of stay of execution by a first appellate court pending the disposal of an appeal before it? First, the plea for an order of stay of execution in the application under consideration was pegged on the hearing and determination of “Thika P&A 580 of 2014”, a cause that is before a succession court. This first appellate court is not seized of any appeal from the said succession court. The court does not have a platform on which to exercise the appellate jurisdiction that it has been invited to exercise. That alone renders the present application incompetent. The court will nonetheless examine the merits of the plea.

6. The principles that guide the jurisdiction of a first appellate court to grant an interlocutory order of stay of execution are spelt out in Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows-;“No order for stay of execution shall be made under sub rule (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.”

7. The impugned Judgment was rendered on 7th September 2023. The original application was brought on 6th October 2023. It was amended on 4th December 2023. In the circumstances, there is no evidence of inordinate delay in bringing the application.

8. As evidence of probable substantial loss, the applicant exhibited photographs of makeshift mabati and timber structures. He also exhibited photographs of an ongoing unroofed stone-walled development that had reached the ring-beam level.

9. The applicant did not, however, bother to satisfy the requirement for security for the due performance of the decree or order as may ultimately be binding on him. The burden of providing evidence on what would be appropriate security in the circumstances of this appeal lies with the applicant. Similarly, the burden of proposing a reasonable security lies with the applicant. As things stand, the applicant wants the court to grant him an order of stay of execution without him tendering evidence on what would be reasonable security and without him proposing any suitable security. The court has absolutely no evidential material which would inform exercise of its jurisdiction in favour of the applicant.

10. Put differently, the trial court determined that the applicant had no right to be on the suit land and should vacate the land or be evicted. In the circumstances, the applicant had a duty to offer appropriate security in relation to his continued stay on the suit properties. He has not done so. He wants the court to ignore the statutory requirements and grant him an order of stay of execution without him proposing or offering any form of security. That is not the way the court is expected to exercise the above jurisdiction.

11. For the above reasons, the court finds that the plea for an order of stay of execution pending the hearing and disposal of Thika P&A Case no. 580 of 2014 is incompetent because this court is not seized of any appeal from the said succession cause. The court further finds that the amended application dated 4th December 2023 does not satisfy the criteria for grant of an order of stay of execution by a first appellate court pending the hearing and disposal of an appeal by the first appellate court.

12. Does the application meet the criteria for grant of an interlocutory injunction by a first appellate court? The applicant filed a supporting affidavit dated 4th December 2023 and written submissions dated 2nd February 2024. Neither of the two documents focuses on the justification for grant of an interlocutory injunction by this first appellate court. Put differently, neither the evidence nor the submissions tendered by the applicant attempted to justify the grant of an interlocutory injunction by this first appellate court. Consequently, the court has absolutely no basis upon which to exercise jurisdiction to grant the interlocutory injunction. It is therefore the finding of this court that the amended application dated 4th December 2023 does not satisfy the criteria for grant of an interlocutory injunction by a first appellate court.

13. In light of the above findings, the amended notice of motion dated 4th December 2023 is rejected and dismissed. The applicant shall bear costs of the application.

14. Lastly, it is clarified that the date for delivery of this ruling was reserved while the Presiding Judge was still stationed at Thika ELC. Effective from 13th January 2025, the Judge was transferred to Meru ELC and Chuka ELC. It is for this reason that this ruling is being rendered virtually at Meru ELC. The relevant original court file shall be returned to Thika ELC forthwith and the Court Registry at Thika ELC shall upload the ruling onto the CTS immediately.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MERU THIS 16TH DAY OF JANUARY, 2025B M EBOSOJUDGEIn the Presence of:Ms Maina for the appellantMr. Ngeresa for the 1st respondentCourt Assistant – Tupet.