[2023] KECA 1577 (KLR)

Karobia (A substituted for Joseph Karobia Gicheru – Deceased) v Gicheru (Civil Application E046 of 2022) [2023] KECA 1577 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KECA 1577 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Civil Application E046 of 2022

W Karanja, J Mohammed & LK Kimaru, JJA

December 8, 2023

Between

Elias Ngugi Karobia (A substituted for Joseph Karobia Gicheru – Deceased)

Applicant

and

Michael Gachoki Gicheru

Respondent

(n application for an injunction, stay of proceedings and/or conservatory orders against the judgment of the Environment and Land Court of Kenya at Kerugoya (Cherono, J.) dated and delivered on 22nd April, 2022 in ELC Case No.783 of 2013 Environment & Land Case 783 of 2013 )

Ruling

1. This is a notice of motion made essentially under Rule 5 (2) (b) of the Court of Appeal Rules, 2022 seeking the following orders from the Court:“(I)That this Honourable Court be pleased to issue orders of injunction and/or stay of proceedings against the respondent from interfering with all that property known as Inoi/Thaita/160 pending the hearing and final determination of this application.

(II)That in addition and/or in the alternative this Honourable Court issue conservatory orders on all the property known as Inoi/Thaita/160 pending the hearing and final determination of this application and or intended appeal herein”.

2. The application is supported by the grounds stated on its face and the supporting affidavit of the applicant. In summary, the applicant states that he was dissatisfied with the judgment of the Environment and Land Court (ELC) which was delivered on 22nd April, 2022. He filed notice of his intention to appeal to this Court. He has annexed a copy of the draft memorandum of appeal which he insists raises good and arguable grounds of appeal which will likely succeed on appeal. The applicant states that his appeal would be rendered nugatory if conservatory orders are not issued in his favour, because, by the time the appeal is heard, it is likely he would have been evicted from the suit land. He asserted that the respondent will not suffer any prejudice as he was still currently in occupation of the land.

3. The respondent did not file any replying affidavit in opposition to the application prior to the plenary hearing. Mr. Ng’ang’a, learned counsel for the applicant filed written submission in support of the application. The respondent did not file any submissions. Neither was he present in Court when the application was called out for hearing, despite service of the hearing notice on him to attend the hearing of the application.

4. This Court’s jurisdiction when considering applications filed under Rule 5 (2) (b) of this Court’s Rules is circumscribed. In Trust Bank Ltd & Anor v Investech Bank Ltd & 3 Others [2000] eKLR, this Court held thus:“The jurisdiction of the Court under Rule 5 (2)(b)is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay, the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…”

5. As stated earlier in this ruling, the applicant was aggrieved by the judgment of the ELC which declared that the applicant held the suit land in trust for himself and the respondent. The Court further held that the respondent was entitled to two acres out of the total acreage of the suit land. It was clear from the said judgment that the decision was made after the court made a finding that the suit land was customary land which was registered in the applicant’s name during the adjudication and consolidation period “to hold in trust for himself and the rest of the family members”.

6. We have perused the grounds of appeal contained in the draft memorandum of appeal. In one of the said grounds, the applicant disputes that the suit land is clan or family land. We agree with the applicant, at least on this point, that he has an arguable ground of appeal. He will have the opportunity, at the appropriate time, to ventilate his appeal before this Court. It is unfortunate that we did not have counter-view from the respondent as he did not file any replying affidavit to put in light his side of the story.

7. On whether the applicant established that his appeal would be rendered nugatory if conservatory orders are not issued, we are satisfied that indeed he would suffer damage that cannot otherwise be compensated by liquidated damages were he to lose the said parcel of land in case it will be disposed of by the respondent before the appeal is heard. If his appeal succeeds, he will not likely get back the land. The applicant is currently in possession of the land. The respondent will not suffer any prejudice as he is currently residing away from the land. The order that commends itself to us is to maintain the current status quo pending the hearing and determination of the intended appeal.

8. In the premises therefore, we find the application has merit and is hereby allowed. A conservatory orders is hereby granted to maintain the status quo in respect of the ownership and occupation of the suit land i.e. LR. No. Inoi/Thaita/160 pending the hearing and determination of the intended appeal. The costs of the application be in the appeal.

It is so ordered.

DATED AND DELIVERED AT NYERI THIS 8TH DAY OF DECEMBER, 2023. W. KARANJA.……………………JUDGE OF APPEALJAMILA MOHAMMED.……………………JUDGE OF APPEALL. KIMARU.……………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR