[2024] KEELC 6729 (KLR)

Kaigera (Suing as the Legal Representative of M’Nabea Baituru alias Nabea Baituru – Deceased) v Ruiri Rwarera Secondary School (Sued through Board of Management & another (Environment & Land Case E10 of 2022) [2024] KEELC 6729 (KLR) (9 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6729 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment & Land Case E10 of 2022

CK Nzili, J

October 9, 2024

Between

Bonface Kaigera

Applicant

Suing as the Legal Representative of M’Nabea Baituru alias Nabea Baituru – Deceased

and

Ruiri Rwarera Secondary School (Sued through Board of Management

1st Respondent

Africa Independent Pentecostal Church of Kenya – Ruiri Rwarera (Sued through Registered Trustees

2nd Respondent

Ruling

1. What is before the Court is an application dated 29. 7.2024 seeking an order for the provision of security by the Officer Commanding Station (OCS) Tutua Police station for the decree-holder to implement the decree of this Court. The reasons are contained on the face of the application and in the affidavit sworn by Muriiki Boniface Kaigera on 29. 7.2024. The applicant avers that the judgment debtor has refused to vacate and render vacant possession voluntarily, yet there was no active stay of the decree; hence have been prejudiced for not reaping the fruits of their judgment. The applicants aver that the 2nd respondent had been given three months to comply with the decree.

2. It is averred that due to the structures on the suit land, the applicant is unable to access or utilize the decree and property, and any attempts to do so have been met with much hostility.

3. The applicants aver that even though the 2nd respondent preferred an appeal at the Court of Appeal Nyeri a while ago, it had sought for them to cede to it the church area, which they agreed to give him ¼ an acre, but the 2nd respondent had refused to take up the offer resorting to chest-thumping, issuing threats and incitement of the local community by peddling lies against them.

4. The applicant urges the Court to grant the orders sought; otherwise, the execution of the decree will not interfere with or prejudice the running of the 1st respondent as it is cozy within its more than three acres of land separate and distinct from the suit land.

5. The application is opposed by a replying affidavit of Julius Kariri sworn on 13. 9.2024. It is averred that there are two matters on appeal, namely Nyeri Court of Appeal Civil Application No. E114 of 2024, out of which stay was granted by consent.

6. Further, the 2nd respondent averred that, as indicated by the applicant, the parties were engaged in active and well-progressing amicable settlement negotiations geared toward achieving a peaceful co-existence. It attached copies of the application at the Court of Appeal, replying affidavit by the applicant thereof and copies of correspondence letters dated 20. 6.2024 and 3. 7.2024.

7. The 2nd respondent relies on written submissions dated 30. 9.2024. It is submitted that there is a stay of execution at the Court of Appeal by consent, which is not disputed by the applicants and which has not been discharged. It is submitted that the record of appeal has been filed and served, and as per the correspondences attached, the parties were negotiating a possible settlement.

8. The 2nd respondent urges the court to find that it became functus officio once the Court of Appeal becomes seized of the applications for stay and the pending appeal.

9. What the applicant is seeking is the provision of security to execute a decree. He has expressed his fears and frustrations about accessing the decreed land. Further, the applicant has averred that despite the pending appeal, an application for stay and an offer to cede a quarter of an acre to the 2nd respondent, the latter has not accepted the offer or in the alternative, voluntarily handed over vacant possession.

10. Instead the applicant aver that the 2nd respondent has become hostile to him and has incited the locals making it impossible to access and utilize the decreed land. Other than alleging that there is a stay order, the replying affidavit has not attached a copy of a stay order at the Court of Appeal, if at all any exists. A court order is either in existence or not. The applicant has denied its existence. It is the 2nd respondent who is insisting that there is one, yet it has not been displayed before this Court. As to the possible settlement, the letter dated 3. 7.2024 acknowledged that the 2nd respondent received on 20. 6.2024. Evidence of a letter communicating the acceptance of the olive branch extended to the 2nd respondent on 21. 6.2024 and at the filing of the replying affidavit on 13. 9.2024 is missing. The easiest thing would have been to attach the acceptance letter and a copy of the stay order by consent. The date when the offer was accepted and the date when the stay order was issued are not indicated.

11. The upshot is that I find the prayers sought in the application merited. The O.C.S Tutua Police Station is directed to provide enough security towards the implementation of the decree of this court against the 2nd respondent. Costs to the applicant.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 9TH DAY OF OCTOBER, 2024. In presence ofC.A KananuMokua for the applicantMawira for C.P Mbaabu for 2nd defendantAG for the 1st defendantHON. C K NZILIJUDGE