[2018] KEHC 5013 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

SUCCESSION CAUSE NUMBER 38 OF 2007

IN THE MATTER OF THE ESTATE OF THE

LATEWAMBUI NJERU..........................................................................(DECEASED)

MICHAEL MUCHOKI NJERU.....................................OBJECTOR/RESPONDENT

VERSUS

JOHN MACHARIA NJERU............................................PETITIONER/APPLICANT

AND

STELLAMARIS NDUNGE MASILA........1ST INTERESTED PARTY/APPLICANT

CATHERINE NYAGUTHII GATUGI.......2ND INTERESTED PARTY/APPLICANT

FRANCIS KOIYA NDIRANGU................3RD INTERESTED PARTY/APPLICANT

PETER KIGOTHO MWANIKI.................4TH INTERESTED PARTY/APPLICANT

MOSES MAINA MACHARIA..................5TH INTERESTED PARTY/APPLICANT

FESTUS GACHINGA MWANGI..............6TH INTERESTED PARTY/APPLICANT

SAMUEL KARIUKI WAWERU................7TH INTERESTED PARTY/APPLICANT

RULING

1. The ruling is in respect of the application dated 2/3/2017 in which the Petitioner and interested parties (hereinafter the Applicants) seek orders;

1. Spent

2. Spent

3. THAT the Honourable Court be pleased to grant an order for Stay of Execution of the Ruling given on the 22nd February, 2017 together with the consequential order for cancellation of title deeds arising from the sub-division of original title number Nyandarua/Oljororok Salient/1328 belonging to the Applicant pending the hearing and determination of the Applicants' intended appeal that has been lodged before the court of appeal.

4. THAT an order of Stay of proceedings be hereby issued to stay any further proceeding of the case herein until hearing and determination of the Applicants' intended appeal that has been lodged in the court of appeal or until further orders of the court.

5. THAT the costs of this application be borne by the Respondents.

2. The application is premised on the affidavit of Francis Koiya Ndirangu with the authority of Interested Parties and the Petitioner and on grounds;

a. THAT the Honourable Court delivered a ruling on 22nd February, 2017 allowing the Objector/Respondent's applications dated 5th February, 2013 and 10th April, 2015.

b. THAT the said ruling gave orders for cancellation of the Applicants' title deeds which comprise of sub-divisions of original title number Nyandarua/Oljororok Salient/1328.

c. THAT being aggrieved by the said ruling, the Petitioner together with the interested parties have lodged an appeal via a Notice of Appeal to the Court of Appeal and which notice was lodged on the 27th February, 2017.

d. THAT on the 24th February, 2017 the Applicants through their advocates sought for certified copies of the proceedings and ruling for purposes of lodging the appeal without delay.

e. THAT the Applicants' appeal is arguable and has high probability of success on the basis that the learned judge in his ruling on 22nd February, 2017 erred on numerous matters of law and fact, firstly by cancelling title deeds to land whereas he lacked the requisite jurisdiction to deal with issues of cancellation of title deeds to land.

f. THAT if the order for stay of execution is not granted as prayed for, then the object of this application and of the appeal will be defeated and rendered nugatory.

g. THAT the main principles of granting a stay of execution pending appeal are well enumerated under Order 42 Rule 6(2) of the Civil Procedure Rules and the Applicants have demonstrated how they have met the said conditions which are:-

i. That the Application has been made without unreasonable delay.

ii. That substantial loss may result to the Applicant unless the order sought for is made.

iii. That the Applicant provides security as may be ordered by court for the due performance of the decree or order.

h. THAT there has been no delay in fling of the application herein since it was filed on the 2nd March, 2017 whereas the impugned ruling of the court was delivered on the 22nd February, 2017.

i. THAT still, there is a running stay of execution for 21 days which was granted by court at the time of delivery of the ruling and the same has not yet lapsed meaning that the application has been filed without unreasonable delay.

j. THAT substantial loss will be suffered by the Applicants if the ruling of 22nd February, 2017 directing the cancellation of their title deeds is executed for they may eventually be evicted from their homes and they will thereon loose ownership of their land and in the event that their appeal turns successful, then it is highly unlikely that they would be able to recover their land or homes in their current state.

k. THAT further, substantial loss will be suffered by the Applicants if their title deeds are cancelled and thereon transferred to beneficiaries of the deceased's estate who may never be in a position to relinquish the properties and/or pay adequate compensation to the applicants for the land and properties in the event that the appeal turns sucessful.

l. THAT so as to prevent substantial loss from being ocassioned on the Applicants and so that the appeal is not rendered nugatory, the Court should order for stay of execution of its ruling for purposes of preserving the “status quo” subsisting prior to the delivery of the ruling.

m. THAT the case herein is not an appropriate case for an order on deposit of security because the suit parcels which are currently held by the Applicants would stand as sufficient security before the hearing of the appeal and more importantly, the parcels of land are expected to appreciate in value such that in the event that the appeal fails to succeed, the Respondent and other beneficiaries of the deceased will not have lost on their award.

n. THAT the application herein will not occasion any prejudice to the Objector/Respondent since the position held at the time of filing his applications shall not be altered and a final or just determination of the issues between parties will be made upon hearing of the appeal.

o. THAT the application sought herein should be granted for the interests of justice and fairness to be served.

3. The gist of the application as gleaned from the grounds and the supporting affidavit relied on is that the applicants together with the Petitioner herein are aggrieved by the ruling of Court of 22/2/2017. They have since lodged an appeal via a notice of appeal to the Court of Appeal on 27/2/2017. They have sought certified copies of proceedings through a letter dated 24/2/2017.

4. It is urged that the Applicants' appeal is arguable and has a high probability of success.

5. It is the Applicants' case that they have met the conditions for grant of stay of execution enumerated under Order 42 Rule 6(2) of the Civil Procedure Rules which are;

i. That the Application has been made without unreasonable delay.

ii. That substantial loss may result to the Applicant unless the order sought for is made.

iii. That the Applicant provides security as may be ordered by court for the due performance of the decree or order.

6. The Applicants aver that substantial loss will be occasioned if the ruling of 22/2/2017 directing cancellation of title deeds is executed for they may eventually be evicted from their homes. It is feared that if the land in question is transfered to the beneficiaries, the beneficiaries may not be in a position to relinquish the properties and/or pay adequate compensation to the Applicants.

7. The Application is opposed and Michael Muchoki Njeru (hereinafter the Respondent) has sworn a replying affidavit in which he depones that the application is incompetent, bad in law and an abuse of the court process. The Applicants have not instituted any appeal to the Court of Appeal as required by law and are therefore not entitled to the orders sought.

8. It is urged that this Court is not enjoined to consider the merits of an intended appeal in an application for stay of execution and it is not demonstrated how the intended appeal can be rendered nugatory if the orders sought are denied.

9. Further, it is averred that the Applicants have not demonstrated that they are on the suit land or that there is threatened eviction. The Applicants, it is added, cannot offer the subject land as security for due performance of the decree.

10. The application was canvassed by way of written submissions.

11. I have had occasion to consider the application, the grounds and supporting affidavit, as well as the replying affidavit and supplementary affidavit. I have had due regard to the submissions by counsel.

12. The issue for determination is whether the Applicants have met the threshold for the grant of orders for a stay of execution pending appeal.

13. The principles in play when granting orders for stay of execution pending appeal are provided for under Order 42 Rule 6(2) of the Civil Procedure Rules. The conditions to be met by an Applicant are;

i. THAT the Application has been made without unreasonable delay.

ii. THAT substantial loss may result to the Applicants unless the order sought for is made.

iii. THAT the Applicants provide security as may be ordered by court for the due performance of the decree or order.

14. Order 42 Rule 6(4) of the Civil Procedure Rules provides;

"Order 42 Rule 6(4) – For the purposes of this rule an appeal to the court of appeal shall be deemed to have been filed when under the rules of that court notice of appeal has been given.”

15. In our instant suit the Applicants proprietary claims to parcels of land Nyandarua/Ol'joro'olok Salient/23945, 23946, 23947, 23948, 23950, 26401, 26402, 26403, 26404, 26405, 26406, 26407 and 26408 were, vide the ruling of this Court dated 22/2/2017 found to be irregularly acquired as the titles issued to them were passed by a person who did not have capacity to legally pass any interest on the land to them. The Court ordered the titles cancelled.

16. Aggrieved by these orders the Petitioner and interested parties have lodged a notice of appeal.

17. As per order 42 rule 6(4),and noting that by the time this ruling is written the Applicants have lodged a proper appeal, the question of whether there is a pending appeal becomes spent.

18. It is clear from the record that the application herein has been made timeously specifically after 10 days after the delivery of the ruling and indeed within the existence of a temporary stay of 21 days that was granted by Court.

19. As regards whether substantial loss would be occasioned should stay not be granted, I note that the subject land is as per orders of this Court to transmit to beneficiaries who would be at liberty to deal with the land as they deem fit. There is therefore a real danger that should the appeal go in favour of the Applicants there might be no land for the Applicants to go to. The Respondent has not demonstrated that he and the other beneficiaries are persons of means who would be in a position to compensate the Applicants.

20. In any event, the subject matter is land. Courts, and for good reason, have adopted a policy of maintenance of the status quo where land is the subject matter.

21. In the case of MUGAH Vs. KUNGA (1988) KLR, the Court of Appeal stated;

“The practice of the court of appeal in the case of land which is a sensitive issue is that the parties should be allowed to come to the court to have the issues involved in their dispute determined by a court of last resort.For the parties to come to this court, the court has to consider whether thestatus quoshould be maintained pending the hearing of the appeal failing which the appeal if succesful will be rendered nugatory. The court was of the view that the status quo should be maintained until the appeal was heard and determined.”(Emphasis added)

22. This position is further buttressed in the decision in HAMISI SALIM MWALUIMO Vs. JULIUS WAMBUGU MOMBASA H.C. CIVIL APPEAL NUMBER 9 OF 2003, where the Court held;

“It is settled law that in possession suits a stay ought to be granted as otherwise a successful appeal will be rendered nugatory. In this case, the appellant has gone on to construct a house on the said land which may lead to its demolition if execution proceeds. As to security, the Respondent is in possession of the title document and therefore the applicant cannot transfer the same. However, I have noted that the issue of ownership was raised in the main trial. After considering all the arguments, I will grant the application on condition that the applicant maintains the land and building in their current state. There shall be no alteration in any manner of the same until the appeal is heard.”(Empasis added)

23. And finally on this point, where the threat of eviction is real, a party stands to suffer substantial loss if he was to be evicted from a property the subject matter of an appeal. In the case of MUKUMA Vs. ABUOGA [1988] KLR 645 the Court of Appealhad this to say;

“Where a party is exercising his undoubted right of appeal the court ought to see that the appeal is not rendered nugatory by preserving the status quo until the appeal is heard.The granting of a stay of execution in the high court is governed by Order XLI Rule 4(2)....The discretion of the Court of Appeal under Rule 5(2) (b) of the Court of Appeal rules is at large but the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. In the circumstances of this case, the applicant stood to suffer substantial loss if she was evicted from the land at this stage. Moreover, it could not be said that her intended appeal had no chances of success,”(Emphasis added).

24. I am persuaded that in the circumstances and facts of this case, substantial loss is likely to be visited on the Applicants should a stay of execution not be granted.

25. The final condition to be met by the Applicant is the rendering of security. The rationale for this requirement is easy to see. A successful litigant is entitled to the fruits of his judgment and if he is kept away from these, there must be a guarantee of due performance of the decree or order.

26. In monetary decrees, the issue of security is always straightforward and invariably involves order for deposit of the decretal sum or a substantial party thereof.

27. Looking at the nature of the decree in our instant suit, I note the subject matter herein is land and I am of the persuasion that the adverse exposure that the Respondent and Beneficiaries would face would be loss of mesne profits and change of character of land and, in the extreme case, the disposal of the land.

28. The Court has within its powers the wherewithal to cushion the Respondents from all the 3. I find and hold that the rendering of security would be met by the Respondents meeting the following conditions.

29. The first step would be to order that inhibitions be registered against all the affected titles. In the case of NAKURU MUNICIPALITY COUNCIL Vs. MURIMA MUTURI & ANOTHER, NAKURU H.C. CIVIL APPEAL NO. 41 OF 2009, the Court while preserving the subject matter which was land stated;

“So that no prejudice is caused to either party, in exercise of my inherent powers, I direct that a restriction shall be registered against the title to the suit land until the appeal is heard and determined.... and Mr. Murima Muturi shall within seven days of service of this order upon him deposit the title deed relating to that piece of land with the Deputy Registrar of this court to be kept in safe custody until this appeal is heard and determined. Mr. Muturi is also hereby restrained from carrying out any development on that piece of land until this appeal is determined”.(Emphasis added)

30. So, in addition to the registration of inhibitions against each of the titles, the Applicants shall within 7 days of this ruling surrender to the Deputy Registrar of this Court all the subject title deeds relating to the land to be kept in safe custody until the appeal is heard and determined.

31. To prevent change of the character of the subject land, the Respondents are hereby restrained from any further developments on the land. There shall be no alterations or new constructions on the land pending the hearing and determination of the appeal.

32. As regards any possible loss of mesne profits during the pendency of the Appeal, each of the Applicants' is to give a written undertaking to compensate the Respondent and beneficiaries over any mesne profits that may be found due should the appeal fail.

33. With the result that I allow the application dated 2/3/2017 in terms of prayer 3 and 4 and make the following orders;

(a) An inhibition be registered against each of the parcel numbers Nyandarua/Ol'joro'olok Salient/23945, 23946, 23947, 23948, 23950, 26401, 26402, 26403, 26404, 26405, 26406, 26407 and 26408 pending the hearing and determination of the appeal.

(b) The Applicants to surrender their respective subject title deeds to their respective parcels of land to the Deputy Registrar of this Court within 7 days hereof to be kept in safe custody until the appeal is heard and determined.

(c) An injunction is to issue against each and every applicant restraining any further development on the subject property pending the hearing and determination of the appeal.

(d) Each and every applicant is to execute a written undertaking to compensate the Respondent and all Beneficiaries over any mesne profits that may be found die should the appeal fail. The mesne profits to be calculated from the date of this ruling.

(e) In default of any single condition as above, execution to issue.

(f) Costs to abide the outcome of the appeal.

Dated and Signed at Nakuru this 25th day of July, 2018.

A. K. NDUNG’U

JUDGE