[2024] KEELC 6543 (KLR)

Kananu v Mwathi & another (Environment and Land Appeal E047 of 2023) [2024] KEELC 6543 (KLR) (2 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6543 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment and Land Appeal E047 of 2023

CK Nzili, J

October 2, 2024

Between

Martha Kananu

Appellant

and

Jeremiah Mwathi

1st Respondent

Meru County Land Registrar

2nd Respondent

Ruling

1. The application for determination is dated 5. 6.2024. The applicant seeks a stay of execution of the orders made on 15. 11. 2023 or in the alternative, the status quo prevailing on the said date be maintained on the joint registration of L.R Nyaki/Munithu/356, with the applicant remaining in occupation of the suit land.

2. The grounds are on the face of the motion and in the supporting affidavit sworn by the applicant on 10. 6.2024. The applicant avers that there is a likelihood for the subdivision of the suit land despite the pending appeal; the applicant and the family of John Kaaria stand to suffer an irreparable loss of their entitlement and lastly; there is also a pending CM Succession Cause No.164/2023 where evidence of the entitlement shall be adduced.

3. The applicant, as the wife of the late John Kaaria, avers that her husband was registered as a joint proprietor with the 1st respondent and attached a copy of the search as MK and a copy of the ruling of the partial stay as MK2. She further avers that the lower court issued a partial stay, that the 1st respondent is in occupation, and that the suit land risks being sold or leased. Additionally, the applicant avers that her appeal has a high chance of success; has applied without delay; a limited grant should have been issued and that she was not allowed to adduce any evidence.

4. Opposing the motion, the 1st respondent, through a replying affidavit sworn on 12. 7.2024, avers that the applicant has not met the principles requisite for grant of stay orders; specifically, she has not demonstrated irreparable loss and has delayed in filing this application for seven months. Again, that the 1st respondent avers that no record of appeal has been filed and that the applicant is out to delay the execution process. Similarly, the 1st respondent avers that the applicant has misrepresented facts given that the suit land is registered in the joint names of the 1st respondent and the applicant, who has declined to present her late husband's death certificate.

5. In written submissions dated 17. 7.2024, the applicant submits that the application was filed without delay and that the appeal shall be rendered nugatory if the orders sought are not granted. Further, the 1st respondent has never been on the suit land after serving his sentence for the murder of her late husband in HCCR No.16/98, and thus, he should not receive any share of the suit land. Reliance is placed on Cyrus Ngari Gthua vs Sakayo Ongati Nyarogo & others (2024) KEELC 1687 (KLR) and Nteto Ole Karia vs Musua Ole Keshe (2024) KEELC 4930 KLR.

6. Order 42 Rule 6 of the Civil Procedure Rules provides that for a party to be entitled to stay of execution, he must demonstrate substantial loss; provide security for the due realization of the decree should the appeal fail; file the application without delay; and lastly; establish if it is in the interest of justice to grant the orders sought. In Senate of the Republic of Kenya & 3 others vs Speaker of National Assembly of the Republic of Kenya & 10 others (Application No (1) E 12) of 2022 KESC 18 (KLR) Civ) 19 May (2022) (Ruling), the court granted a stay on public interest basis to prevent an infringement of the constitution as the petition was yet to be heard. Consideration is to be heard on the length and reasons for the delay; degree of prejudice to the respondent if the application is allowed, and perhaps chances of success of the intended appeal as held in Seventh Day Adventist Ltd vs Muslim Mosque Committee & 2 others (Civil App E 138 of 2021 (2022) KECA 100 (KLR) 11th February (2022) (Ruling).

7. In Butt vs Rent Restriction Tribunal (1982) KLR 417, the court held that the power to grant a stay is discretionary so as not to render nugatory should that appeal reverse the decision appealed against, and a judge should not refuse a stay if a better remedy exists. The court must also consider the exceptional circumstances of each case, especially since the applicant has an undoubted right of appeal.

8. The instant application has been brought after a delay of over seven months, the reasons for which are not sufficiently explained. The applicant has not explained why it took her a whole seven months to bring the application.

9. On the prayer for the status quo to be maintained, having found the applicant has not met the requirements under Order 42 Civil Procedure Rules, I find no basis to grant the alternative relief sought. The application is dismissed.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 2ND DAY OF OCTOBER, 2024In presence ofC.A KananuMiss Kaume for applicantJuma for A.G for 2nd respondentHON. C K NZILIJUDGE