[2020] KEELC 482 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT ELDORET

E & L CASE NO. 588”A” OF 2012

[Formerly Eldoret Hccc No. 6 of 2010]

JOHN BARTINGEI SAMOEI..................................................................PLAINTIFF

VERSUS

COSMAS MAKHANU WEKESA..................................................1ST DEFENDANT

JAMES BARGOKWET KASIKA................................................2ND DEFENDANT

RULING

[NOTICE OF MOTION UNDER CERTIFICATE OF URGENCY DATED 2ND JUNE, 2020]

1. The 2nd Defendant filed the above Motion, seeking for an order of stay of execution of the judgment dated the 21st April, 2020 and delivered on 6th May, 2020, pending the filing, hearing and determination of the intended appeal. The application is based on the nine (9) grounds on its face and supported by the affidavit of James Bargokwet Kasika, the 2nd Defendant, sworn on the 2nd June, 2020. It is the 2nd Defendant’s case that he was dissatisfied with the judgment delivered on 6th May, 2020 and had on 18th May, 2020 filed the Notice of Appeal. That unless the stay order sought is granted, he stands to suffer substantial loss and irreparable damage. That he is ready and willing to meet all the conditions the court may impose in granting the stay order. That the application was filed without delay.

2. The application is opposed by the Plaintiff through his replying affidavit sworn on the 22nd June, 2020. That it is the Plaintiff’s case that the application is fatally defective for it was filed through M/s Komen Kipchirchir & Company Advocates, who are new advocates without complying with Order 9 Rule 9 of Civil Procedure Rules after judgment had already been entered. That the 2nd Defendant has not demonstrated the substantial loss that he is likely to suffer, and therefore has not met the threshold in Order 42 Rule 6 of the Civil Procedure Rules. That the Plaintiff has been in possession of the suit land since 1980, and the decree has been forwarded to the Land Registry, Eldoret for registration. That the application has been overtaken by events. That should the application be granted, the 2nd Defendant should be required to deposit security for costs.

3. That the Court certified the application urgent on the 8th June, 2020 and on the 23rd July, 2020, gave directions on filing and exchanging written submissions. That by the mention of 8th October 2020, only Counsel for the Plaintiff had filed their written submissions dated the 17th August, 2020. The learned Counsel has submitted that as this suit had been decided through the judgment delivered on the 6th May, 2020, the firm of M/s Komen Kipchirchir & Company Advocates, through whom the 2nd Defendant’s Motion was filed, were required to comply with Order 9 Rule 9 of Civil Procedure Rules and did not. That the application therefore offends the said provision which the Court in the case of Stephen Mwangi Kimote Vs Murata Sacco Society [2018] eKLR, held was not a mere technicality. That the application should therefore be struck out. That further, the 2nd Defendant has not met the threshold in Order 42 Rule 6 of Civil Procedure Rulesas he has not shown that he will suffer substantial loss, unless the order sought is granted and that the application was filed without unreasonable delay. The learned Counsel referred to the case of Jane Jeptoo Sawe Vs Estate of Sylvester Kimagut Sang represented byJennifer Chebet Sang Civil Application No. 49 of 2015, where the Court of Appeal held that the order of stay of execution that the Applicant sought had been overtaken by events and could be granted as it would serve no useful purpose. That the learned Counsel asked the Court to find likewise as the decree had been forwarded to the Lands Office on the 11th June, 2020.

4. The following are the issues for the Court’s determinations;

(a) Whether the 2nd Defendant’s application is properly before the Court.

(b) Whether the 2nd Defendant has met the threshold set in Order 42 Rule 6 of Civil Procedure Rules.

(c) Who pays the costs of the application?

5. The Court has carefully considered the grounds on the Motion, the affidavit evidence by the 2nd Defendant and the Plaintiff, the Plaintiff’s Counsel’s submissions, the superior court’s decisions cited thereon, the record and come to the following findings;

(a) That the judgment dated 21st April, 2020 and delivered on the 6th May, 2020 shows that the Court found in favour of the Plaintiff in the two consolidated suits in respect of land parcel Uasin Gishu/Kipkabus Settlement Scheme/378. That the Court further granted the Plaintiff’s costs.

(b) That the record further confirms that the Plaintiff filed their bill of costs dated the 26th May, 2020 on the 12th June, 2020. That by then, the 2nd Defendant had filed the instant Motion dated the 2nd June, 2020 on the 5th June, 2020. That obviously, the Motion was filed before the execution proceedings in the nature of bill of costs, contrary to the Plaintiff’s position that the application was meant to delay the execution.

(c) That the 2nd Defendant’s Motion dated 2nd June, 2020 and filed on 5th June, 2020 is clearly indicated to be drawn by and filed through M/s Komen Kipchirchir & Company Advocates. That the Notice of Appeal dated 18th May, 2020 and filed on the 19th May, 2020 is also drawn and filed through the said firm on behalf of the 2nd Defendant. That earlier, the same firm of advocates had drawn and filed the submissions for the 2nd Defendant dated the 29th January, 2020 and filed on 30th January, 2020. The record confirms that M/s Komen Kipchirchir & Company Advocates had indeed filed the Notice of Change of Advocate dated the 30th May, 2018 effectively coming on record for the 2nd Defendant in place of M/s A. K. Chepkonga & Company Advocates. That the contention by the Plaintiff that the said firm of Advocates have contravened Order 9 Rule 9 of the Civil Procedure Rulestherefore has no basis. The Counsel was on record for the 2nd Defendant and participated in the hearing that culminated in the judgment delivered on the 6th May, 2020.

(d) That though the 2nd Defendant had indicated at ground (c) on the Motion that he filed the Notice of Appeal on the 8th May, 2020, the attached copy of the notice, and the one on record are dated the 18th May, 2020 and filed on the 19th May, 2020. That as the application subject matter of this ruling is dated 2nd June, and filed on the 5th June, 2020, it is the finding of the Court that there was no unreasonable delay in filing the Motion.

(e) That the Court’s judgment delivered on the 6th May, 2020 leaves no doubt that the person in occupation of the suit land was the Plaintiff in whose favour the judgment is. That the Court among others held as follows;

“In this matter, the Plaintiff has proved on a balance of probabilities that he has been in possession of the suit property for more than 12 years after the 1st Defendant was registered as the proprietor of the suit land and that at the time the 1st Defendant was selling and transferring the property to the 2nd Defendant, his rights had already been extinguished.

The upshot of the above is that it is hereby declared that the Defendants’ interest in L. R. No. Uasin Gishu/Kipkabus Settlement Scheme/378, measuring 4. 3 hectares has been extinguished and that the Plaintiff, John Bartingei Samoei be registered as the absolute proprietor of the said parcel…”

That though the Plaintiff claimed that the 2nd Defendant’s Motion has been overtaken by events, as he had forwarded the decree to the Land Registry on the 11th June 2020, there is no evidence in the form of a certified copy of title deed, register or certificate of official search issued by the Land Registrar confirming that the suit land had since been registered in the name of the Plaintiff. That even if such evidence had been availed and the 2nd Defendant presents sufficient evidence to show that he stands to suffer substantial loss, the court would still have jurisdiction to order stay of further execution, or issue an order to maintain the legal status obtaining in respect of the suit land pending, the hearing and determination of the pending appeal.

(f) That the 2nd Defendant at ground (e) of the Motion and paragraph 11 of the supporting affidavit alluded to the substantial loss and irreparable damages he stands to suffer if stay order is not granted. That the nature or details of the said “substantial loss” and “irreparable damage” has not been set out or disclosed and according to the Plaintiff, the 2nd Defendant has failed to prove it. That Order 42 Rule 6 of the Civil Procedure Rules among others requires an applicant to satisfy the Court that substantial loss would result if the order is not issued. That the order sought being discretionary, the 2nd Defendant had the duty to tender prove that indeed, he would suffer substantial loss if the prayer is not granted. The Court finds no such evidence has been tendered, as he is not in possession. That if successful on appeal, the Court would issue the appropriate orders to grant the 2nd Defendant possession and title to the suit land.

(g) That as the 2nd Defendant has failed in his application the costs of the Motion should abide the outcome of the appeal.

6. That flowing from above, the Court finds the 2nd Defendant’s Motion dated the 2nd June, 2020 to be without merit and is dismissed with costs to abide the outcome of the appeal.

Orders accordingly.

Delivered virtually and dated at Eldoret this 2nd day of December, 2020.

S. M. KIBUNJA

JUDGE

In the presence of:

Plaintiff: Absent.

Defendants: Absent.

Counsel: Mr. Kandie for the Plaintiff only.

Court Assistant: Christine

and the Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses.