[2021] KECA 163 (KLR)

Kamunya & 24 others v Patmwa Limited (Civil Application E084 of 2021) [2021] KECA 163 (KLR) (19 November 2021) (Ruling)

Neutral citation: [2021] KECA 163 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E084 of 2021

HA Omondi, DK Musinga & KI Laibuta, JJA

November 19, 2021

Between

Philip Kamunya

1st Applicant

Ibrahim Ongiri

2nd Applicant

Nelson Ikhuta

3rd Applicant

Samson Sagwe

4th Applicant

Joseph Kamau

5th Applicant

Robert Maina

6th Applicant

Alice Gathoni

7th Applicant

Simon Peter Weru

8th Applicant

James Makori

9th Applicant

Geoffrey Muigai

10th Applicant

Pius Seif

11th Applicant

Richard Atambo

12th Applicant

James Mwaniki

13th Applicant

George Onsongo

14th Applicant

Aloyce Ongoto

15th Applicant

Joyce Obadia

16th Applicant

Eunice Njoki

17th Applicant

Miriam Onyango

18th Applicant

Nathan Nyakundi

19th Applicant

Catherine Nduku

20th Applicant

Charles Githui

21st Applicant

Charles Yewa Oloo

22nd Applicant

David Maingi

23rd Applicant

Evans Munyasia

24th Applicant

Alex Odhiambo

25th Applicant

and

Patmwa Limited

Respondent

(An application for stay of execution pending the lodging, hearing and determination of an intended appeal from the Ruling of the Environment and Land Court at Nairobi (E. Obaga, J.) delivered on 4th March 2021 in E.L.C. No. 56 of 2012)

Ruling

1. The applicants’ Notice of Motion dated 10th March 2021 seeks stay of the judgment and decree issued in Nairobi ELC No.56 of 2012 (O.S.) on 4th March 2021 pending hearing and determination of an intended appeal. The 25 applicants reside on a property known as L.R No. 9042/126 situate at Embakasi, Muradi area (the suit property), where they say that they have carried out permanent developments.

2. The applicants filed a suit against the respondent, the registered proprietor of the suit property, claiming that they had resided on the suit property for more than twenty (20) years, and urged the Environment and Land Court to declare them owners thereof under the doctrine of adverse possession.

3. The respondent opposed the suit but did not file any counterclaim seeking eviction of the applicants. However, the respondent filed an application for striking out of the applicants’ suit and for their eviction, on grounds that the suit was res judicata. It argued that the applicants were members of Airport View Neighbours Group, which, through its officials, had unsuccessfully sued the respondent in ELC NO. 335 of 2010 seeking orders of adverse possession. Upon dismissal of the suit, the applicants, in their individual capacities, filed ELC No. 56 of 2012, which was struck out, and the trial court ordered their eviction from the suit property.

4. The applicants, having filed a notice of appeal against the impugned decision, now urge this Court to stay the orders of the trial court. They contend that their intended appeal is arguable and, unless the orders sought are granted, they shall be evicted from their respective homes, thus rendering the appeal, (if successful) nugatory.

5. The respondent, on the other hand, contends that the intended appeal is not arguable and that the appeal, if successful, shall not be rendered nugatory even if the applicants are evicted from their residences erected on the suit property.

6. Upon perusal of the application, the parties’ affidavits and submissions, and bearing in mind the principles under which this Court determines rule 5(2)(b) applications as summarized in Stanley Kangethe Kinyanjui v Tony Ketter & Others [2013] eKLR, we are satisfied that the intended appeal is arguable. We are also persuaded that unless we grant the orders sought, the applicants shall be evicted from the suit property before their intended appeal is heard and determined, in which event the appeal, if successful, shall be rendered nugatory.

7. Consequently, we hereby grant stay of execution of the judgment and decree issued in Nairobi ELC Case No. 56 of 2012 (O.S.) and in particular the eviction orders against the applicants pending hearing and determination of the intended appeal.

8. Each party shall bear its own costs of the application.

DATED AND DELIVERED AT MOMBASA THIS 19TH DAY OF NOVEMBER, 2021. D. K. MUSINGA, (P).....................................JUDGE OF APPEALH. A. OMONDI.......................................JUDGE OF APPEALDR. K. I. LAIBUTA......................................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR