[2023] KEELC 22185 (KLR)

Kamwere (Suing as Administrator of the Estate of John Kamwere Gichuhi – Deceased) & another v Nderitu. (Environment & Land Case 41 of 2023) [2023] KEELC 22185 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEELC 22185 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyandarua

Environment & Land Case 41 of 2023

YM Angima, J

December 14, 2023

Between

Ruth Wanjeri Kamwere (Suing as Administrator of the Estate of John Kamwere Gichuhi – Deceased)

1st Plaintiff

George Kimani & David Kanoga Kaguma (Suing as Administrator of the Estate of Eliud Kiarii Kaguma – Deceased)

2nd Plaintiff

and

Vincent Nyingi Nderitu.

Defendant

Ruling

A. Defendant’s Application 1. Vide a notice of motion dated 22. 09. 2023 brought under Order 50 rule 1 of the Civil Procedure Rules, 2010 (the Rules), Sections 1 & 3A of the Civil Procedure Act (Cap.21) and all enabling provisions of the law, the Defendant sought the following orders:a.Spent;b.That this honourable court do and hereby direct the County Surveyor – Nyandarua South in charge of Njabini Settlement Scheme to visit land Parcels No. Nyandarua/Njabini 90, 91, 142 and 615 and re-ascertain the boundaries in further compliance with the consent order issued on 19. 06. 2013 and survey report dated 27. 08. 2013 conducted on 01. 08. 2013 and 02. 08. 2013 by District Surveyor – Nyandarua South.c.That any missing beacons be re-planted clearly marking boundaries of land Parcels No. Nyandarua/Njabini 90, 91, 142 and 615 vis-à-vis land Parcel No. Nyandarua/Njabini/90, 91 and 142. d.That the Plaintiffs/Respondents, their relatives, servants, agents and any person acting under their authorities be ordered to vacate from land parcel No. Nyandarua/Njabini/615 within fourteen (14 days) in the following levels of their encroachment and or illegal occupation:i.Land Parcel No. Nyandarua/Njabini/90 was owned by Eliud Kiarii and had encroached on Parcel No. Nyandarua/Njabini/615 by 12. 5 acres.ii.Land Parcel No. Nyandarua/Njabini/91 was owned by Kamwere Gichuhi and had encroached on Defendant’s/Applicant’s land Parcel No. Nyandarua/Njabini/615 by 8 acres.iii.Land Parcel No. 142 owned by George Kamau Munjuga had encroached on the Defendant on the Defendant/Applicants’ land Parcel No. Nyandarua/Njabini/615 by 12. 5 acres.e.That failure to comply with order 4 above, the Defendant/Applicant is hereby authorized to forcefully evict the Plaintiffs/Respondents, their relatives, servants, agents and any person acting under their authorities from land Parcel No. Nyandarua/Njabini/615 and demolish any illegal structures, crops and trees illegally erected or planted on Nyandarua/Njabini/615. f.That the OCS – Kwa Haraka Police Station be ordered to provide security during survey exercise and subsequently supervise and enforce the orders of the honourable court.g.That costs of this application be paid by the Plaintiffs/Respondents.

2. The application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by the Defendant on 22. 09. 2023 and the exhibits thereto. The Defendant stated that vide the judgment dated 02. 03. 2023 the Plaintiffs’ suit was dismissed whereas his counterclaim was allowed. It was contended that despite the Plaintiffs being made aware of the terms of the judgment which required them to hand over the portions of Parcel 615 which they were occupying, they had failed to vacate and handover possession hence making the instant application necessary.

B. Plaintiffs’ Response 3. The Plaintiffs filed a notice of preliminary objection dated 12. 10. 2023 and a replying affidavit sworn by Ruth Wanjeri on 12. 10. 2023 in opposition to the said application. The Plaintiffs contended that there was a pending appeal against the judgment and decree dated 02. 03. 2023. They further contended that they had a pending application for stay of execution before the Court of Appeal hence the impugned decree ought not to be enforced. The Plaintiffs contended that in the event the application is allowed then their pending appeal might be rendered nugatory. It was also the Plaintiffs’ contention that Parcel 615 which the Defendant claimed in the suit was non-existent hence the application ought not to be allowed during the pendency of the matter before the Court of Appeal.

C. Directions on Submissions 4. When the application was listed for inter partes hearing, it was directed that the same shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that the Plaintiffs’ submissions were filed on or about 15. 11. 2023 whereas the Defendant’s submissions were filed on about 20. 11. 2023.

D. Analysis and Determination 5. The court has considered the Defendant’s notice of motion dated 22. 09. 2023, the Plaintiffs’ preliminary objection and replying affidavit dated 12. 10. 2023 as well as the submissions on record. The court is of the opinion that there are two main issues which arise for determination herein. The first is whether the Plaintiffs’ preliminary objections have merit. The second is whether the Defendant has made out a case for the grant of the orders sought in the application.

6. It has long been held that a preliminary objection should consist of a pure point of law which should be determined on the basis that all the facts pleaded by the other side are correct. It cannot be raised if there are contested matters of fact which require to be ascertained. See Mukisa Biscuits Manufacturing Co. Ltd -vs- West End Distributors Ltd [1969] EA. 696.

7. The court has noted that some of the issues raised by the Plaintiffs were the subject of the hearing and were determined in the judgment dated 02. 03. 2023. The issue of whether or not Parcel 615 was in existence was determined in the judgment hence it cannot be canvassed in the instant suit. That issue can only be raised and determined again before the Court of Appeal.

8. The material on record shows that the Plaintiffs had sought a stay of execution of the decree vide their notice of motion dated 10. 03. 2023. The record shows that one of the grounds raised in that application was that the Plaintiffs were apprehensive that their appeal before the Court of Appeal might be rendered nugatory unless the stay sought was granted. Vide its ruling dated 20. 07. 2023 the court dismissed the Plaintiffs’ said application for stay for lack of merit.

9. The court is thus of the opinion that it cannot revisit or review its decision on the Plaintiffs’ earlier application for stay. The question of whether or not the Plaintiffs’ pending appeal shall be rendered nugatory can only be canvassed again before the Court of Appeal or a higher court. The pendency of an appeal does not by itself operate as a stay of execution of the impugned decree. This is clear from the provisions of Order 42 rule 6(1) of the Rules which stipulates as follows:“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.”

10. It is clear from the Defendant’s application that its sole purpose is to facilitate execution of the decree in his counterclaim which required the Plaintiffs to deliver vacant possession of the portions of Parcel 615 they were occupying or utilizing. It is clear from the application and the material on record that the Plaintiffs have refused to yield possession as required by the decree. The court is of the view that the Defendant had no other option other that to file the instant application to facilitate the Plaintiffs’ eviction so that he may enjoy the fruits of his judgment. In the absence of an order of stay either from this court or the Court of Appeal the court is satisfied that the Defendant is entitled to the orders sought in the application to enable him realize the fruits of the decree in his favour.

E. Conclusion and Disposal Order 11. The upshot of the foregoing is that the court finds no merit in the Plaintiffs’ notice of preliminary objection. The court is thus satisfied that the Defendant is entitled to the orders sought in the application. As a consequence, the court makes the following orders for disposal of the application and the preliminary objection:a.The Plaintiffs’ notice of preliminary objection dated 12. 10. 2023 is hereby overruled.b.The Defendant’s notice of motion dated 22. 09. 2023 be and is hereby allowed in terms of orders 2, 3, 4, 5 & 6 thereof.c.The Defendant is hereby awarded costs of the application and the preliminary objection to be borne by the Plaintiffs jointly and severally.It is so ordered.

RULING DATED AND SIGNED AT NYANDARUA THIS 14TH DAY OF DECEMBER, 2023 AND DELIVERED VIA MICROSOFT TEAMS PLATFORM.In the presence of:Mr. Wachakana for the PlaintiffsMr. Musungu for the DefendantC/A - Carol.........................Y. M. ANGIMAJUDGE