[2020] KEELC 616 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KISUMU

ELC CASE NO. 48 OF 2017

LUCAS A. O. N. OCHIENG.............................................................PLAINTIFF

VERSUS

JUDITH OTIENO OWITI.............................................................DEFENDANT

AND

KISUMU MUNICIPAL COUNCIL..................................................3RD PARTY

R U L I N G

By a Judgment delivered on 5th September 2019, KIBUNJA J issued the following orders: -

1 (a) That a mandatory injunction is hereby issued compelling the defendant to forthwith remove all fixtures and or structures, building materials, illegally erected and placed upon the plaintiff’s parcel of land known as KISUMU MUNICIPALITY L.R NO 25793 (the suit property) within ninety (90) days and in default, eviction and demolition orders to issue.

(b) That the defendant to pay the plaintiff Kshs. 200,000/= (two hundred thousand) as general damages for trespass.

(c) The defendant to pay the plaintiff costs.

2. The defendant’s Counter – Claim is dismissed with costs to the plaintiff.

3 . The defendant to pay the third-party costs.

Aggrieved by that Judgment the defendant promptly filed a Notice of Appeal on 10th September 2019.

Meanwhile, the 3rd party filed on 21st November 20919, it’s Bill of Costs dated 19th November 2019. By a ruling dated and delivered on 23rd July 2020, the Deputy Registrar HON M. SHIMENGA taxed the said Bill of Costs in the sum of Kshs. 176,535/=.

I now have for my determination, the following two applications both filed by the defendant: -

1. The Notice of Motion dated 13th December 2019 and;

2. The Notice of Motion dated 3rd August 2020.

The applications were placed before me on 31st August 2020 during the service week at the ENVIRONMENT AND LAND COURT KISUMU when MR MWAMU for the defendant informed the Court that he had already filed and served his submissions. MR OUMA NJOGA for the plaintiff sought and was allowed three weeks to file and serve both his response to the application dated 3rd August 2020 as well as his submissions. The file was subsequently transmitted to the ENVIRONMENT AND LAND COURT BUNGOMA and placed before me on 2nd November 2020. I directed that the ruling shall be on notice.

1. APPLICATION DATED 13TH DECEMBER 2019.

This application is anchored upon Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, Order 42 Rule 6 of the Civil Procedure Rulesand Article 159 of the Constitution. The application is premised on the grounds set out therein and is also supported by the affidavit of JUDITH OTIENO OWITI the defendant herein and the following orders are sought: -

1. Spent

2. Spent

3. That an interim order of injunction do issue restraining the defendant (this is a typographical error and must have meant the plaintiff) either by himself, his servants and/or agents or anyone whomsoever claiming title or acting on his behalf from entering, remaining in, occupying/continuing to occupy, cultivating, constructing on, alienating, selling or doing any act on the land parcel known as KISUMU MUNICIPALITY L.R NO 25793 pending the full hearing and determination of the appeal.

4. Spent

5. That the Court be pleased to issue an order staying all proceedings further to the ruling (it’s actually a Judgment) of HON JUSTICE S. M. KIBUNJA dated 5th September 2019 and all consequential orders flowing therefrom pending the hearing and determination of the appeal.

6. Costs of the application be provided for.

Annexed to the application are the following documents: -

(a) Judgment dated 5th September 2019.

(b) Notice of Appeal.

(c) Decree.

(d) Allotment letter.

(e) Memorandum of Appeal.

The gist of the application is that the Judgment dated 5th September 2019 lacks basis, is not founded in law and is unconstitutional. That the defendant is now living in constant fear and may be evicted forcefully. That unless the Court intervenes, the defendant will incur serious losses and irreparable damage to her property which cannot be compensated. That the appeal raises serious issues of law which should be canvassed as it has high chances of success. That the application has been filed without unreasonable delay and the plaintiff will not be prejudiced and instead, the defendant stands to lose her legally acquired land.

In opposing the application, LUCAS A. O. N. OCHIENG (the plaintiff herein), has filed both grounds of opposition and a replying affidavit describing the application as misconceived, lacking merit and bad in law as it does not meet the legal threshold for the orders sought and there is no pending appeal. Further, that the defendant is guilty of laches. The plaintiff avers that he is the sole registered proprietor of the suit property on which the defendant has illegally constructed a residential house from which she has been earning rent of Kshs. 20,000/= per month since 2005. That the grant which he holds over the suit property cannot be challenged by either a sale agreement or a letter of offer. That having lost the case, the defendant is abusing the judicial process in order to illegally perpetuate her stay on the suit property. That it would be inimical and unfair to stay the Judgment delivered on 5th September 2019 just because the defendant has lodged a Notice of Appeal. That it is the plaintiff who has suffered and continues to suffer substantial loss and irreparable damage. That since the taxation of his Bill of Costs has not been done, there is no immediate danger of execution of the Judgment.

I have considered the defendant’s Notice of Motion dated 13th December 2019, the rival affidavits and annextures as well as the submissions by Counsel.

It is clear to me that in the said application, the defendant seeks two substantive remedies namely: -

(a) Injunction pending appeal.

(b) Stay of execution pending appeal.

I shall consider them in that order.

(a) INJUNCTION PENDING APPEAL

It is not disputed that this Court has the jurisdiction to grant an injunction pending an appeal from its decision. The purpose is to prevent the Court of Appeal’s decision being rendered nugatory should the Judgment appealed be reversed – MADHUPAPER INTERNATIONAL LTD .V. KERR 1985 eKLR [1985 KLR 840]. This Court therefore has the discretion to grant such an injunction but it must be exercised judicially and on sound reasons but not in a whimsical or arbitrary fashion. Congent reasons must therefore be put forward by the party seeking such a relief. The discretion will however not be exercised in favour of an Applicant if to do so will inflict greater hardship than it would avoid. Some of the principles that guide a Court while considering an application such as this one were set out in PATRICIA NJERI .V. NATIONAL MUSEUM OF KENYA 2014 eKLR and they include: -

1. An order of injunction pending appeal is a discretionary remedy and will not be exercised against an Applicant whose appeal is frivolous.

2. The discretion should be refused where it would inflict greater hardship than it would avoid.

3. The Applicant must demonstrate that to refuse the injunction would render the appeal nugatory.

4. The Court should also be guided by the principles set out in GIELLA .V. CASSMAN BROWN LTD 1973 E.A 358.

It must also be remembered that whereas the Respondent has the right to enjoy the fruits of his Judgment, the Applicant also has the right to have his appeal not being rendered nugatory should he be successful. These competing interests are the basis upon which the Court must consider such an application.

In the decree being appealed, the Court directed the defendant to remove all fixtures, structures and buildings illegally erected on the suit property within ninety (90) days and in default, eviction and demolition orders to issue. It is common ground that the defendant is currently in possession of the suit property. The record shows that on 19th December 2019, OMBWAYO J directed that the status quo obtaining on the suit property be maintained. That order is still in force having been extended on 31st August 2020 and also on 12th January 2020. Among the grounds set out in the application is that if the defendant is evicted, she stands to lose her only home and developments valued at over 4 million. On the other hand, the plaintiff’s case is that the defendant has illegally constructed two houses on the suit property and is receiving rent of Kshs. 20,000/= per moth since 2005. In the Judgment being appealed, the Court also directed that the defendant pays the plaintiff Kshs. 200,000/= as general damages. There is no mention of any rent. In my view, if the house erected on the suit property is demolished, it would inflict greater hardship than if the property is preserved. This is because, if the house is demolished, then the substratum of the dispute will have been dissipated and no doubt the appeal will be rendered nugatory and merely an academic exercise. On the other hand, should the appeal be dismissed, the developments on the suit property will still be available for demolition. Taking all that into account and also bearing in mind that there is already an order for the maintenance of the status quo which has been in place for almost one year now, the cause of interest will best be served by granting the prayer for injunction pending appeal.

(b) STAY OF EXECUTION PENDING APPEAL.

Having already granted the prayer for injunction pending appeal, I take the view that the grant or otherwise of this prayer will be mere surplusage. However, since the application is before me for determination, it is only proper that I apply the law to the facts herein and make a determination on it nonetheless.

This Court’s powers to order a stay of execution pending appeal are donated by Order 42 Rule 6(1) and (2) of the Civil Procedure Rules. That provision provides as follows: -

6(1): “No appeal or second appeal shall operate as a stay of execution or proceeding 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.”

2: “No order for stay of execution shall be made under subrule (1) unless –

(a) The Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the application has been made without unreasonable delay; and

(b) Such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” Emphasis added.

It is clear therefore that to justify the grant for an order of stay of execution pending appeal, the defendant was required to meet the following conditions: -

1. Demonstrate that she will suffer substantial loss unless the order is granted.

2. File the application without unreasonable delay.

3. Offer security.

In VISHRAM RAVJI HALAI .V. THORNTON & TURPIN 1990 KLR 365, the Court of Appeal stated that whereas it’s jurisdiction to grant such an order is not fettered, the High Court’s and, therefore also, this Court’s jurisdiction to grant an order of stay of execution pending appeal is fettered by the above conditions. The wording of Order 42 Rule 6(1) and (2) of the Civil Procedure Rules makes it clear that the defendant was required to prove all, not some only, of the above conditions.

In KENYA SHELL LTD .V. BENJAMIN KIBIRU & ANOTHER 1980 KLR 410. PLATT Ag J.A (as he then was) stated thus: -

“it is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated, if there is no evidence of substantial loss to the Applicant, it would be a rare case when an appeal would be rendered nugatory by some other event.

Substantial loss in it’s various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the Respondents should be kept out of their money.” Emphasis added.

And in MACHIRA t/a MACHIRA & CO ADVOCATES .V. EAST AFRICAN STANDARD (NO 2) 2002 2 KLR 63, it was stated as follows: -

“In this kind of application for stay, it is not enough for the Applicant to merely state that substantial loss will result. He must prove specific details and particulars ……. Where no pecuniary or tangible loss is shown to the satisfaction of the Court, the Court will not grant a stay.”

In HALAI & ANOTHER .V. THORNTON & TURPIN (supra) the Court of Appeal stated:-

“The High Court’s discretion to order a stay of execution of it’s order or decree is fettered by three conditions. Firstly, the Applicant must establish sufficient cause,secondly, the Court must be satisfied that substantial loss would ensue from a refusal to grant a stay and thirdly, the Applicant must furnish security. The application must of course be made without unreasonable delay.” Emphasis added.

Has the defendant met the threshold set out in Order 42 Rule 6(1) and (2) of the Civil Procedure Rules as discussed in the above precedents? In my view, the defendant has only surmounted one hurdle and that is proof of substantial loss. In ground No 4 of her application, she has demonstrated that if she is evicted, she will lose her only home and developments valued at over Kshs. 4 million. In paragraph 12 of her supporting affidavit, she describes such loss as serious and irreparable. I have no doubt in my mind that the loss of one’s only home is substantial loss. That is clearly sufficient cause to warrant the grant of an order for stay of execution pending appeal.

However, the defendant was also required to approach the Court without unreasonable delay. The Judgment sought to be stayed was delivered on 5th September 2019. This application was filed on 13th December 2019 some three (3) months later and although the defendant has deponed in paragraph 16 of her supporting affidavit that the application “has been brought without unreasonable delay,” no explanation has been advanced for that delay which, in my view, amounts to an unreasonable delay. Of course, what is unreasonable delay will have to be considered on the circumstances of each case. The record shows that on 5th September 2019 when the Judgment was delivered, MR ORENGO was present in Court holding brief for MR MWAMU for the defendant. All the other parties were absent. The defendant therefore became aware about the Judgment on 5th September 2019. There is no suggestion that she did not become aware about the Judgment soon after it was delivered. This is because, her counsel was present in Court on 5th September 2019. If at all she was not made aware about the Judgment in good time, the onus was on her to prove otherwise. In FLORENCE NAMACHITU & ANOTHER .V. DORIS WANYAMA 2020 eKLR, I found that an un-explained delay of three (3) months was un – reasonable. Any delay must be satisfactorily explained. Without such an explanation, a party seeking the exercise of the Court’s discretion in his favour will find the door closed. The defendant has not offered any explanation, satisfactory or otherwise, as to why she took three (3) months to file this application. It would appear that she was only jolted into action following the taxation of the 3rd party’s Bill of Costs dated 19th November 2019. The bottom line however is that the delay herein is unreasonable and has not been explained and therefore disentitles the defendant to orders of stay of execution pending appeal.

Similarly, the defendant would not be entitled to an order for stay of execution pending appeal as no security has been offered by her for the due performance of any decree that may ultimately be binding on her. As was held in WYCLIFF SIKUKU WALUSAKA .V. PHILIP KAITA WEKESA 2020 eKLR: -

“The offer for security must of course come from the Applicant himself as a sign of good faith to demonstrate that the application for stay of execution pending appeal is being pursued in the interest of justice and not merely as a decoy to obstruct and delay the Respondent’s right to enjoy the fruits of his Judgment.”

While it is the duty of the Court to order that such security be furnished, the Applicant must show that he is willing to offer security to abide by any orders that the Court may impose as a condition for the remedy of stay of execution. No such offer has been made by the defendant. On the merits therefore, the defendant would not be deserving of an order of stay of execution pending appeal. However, as already explained above, this Court having found that the prayer for injunction pending an appeal is deserved, this discussion is rendered merely academic.

2. APPLICATION DATED 3RD AUGUST 2020.

By this application, the defendant sought the following orders: -

1. Spent

2. Spent

3. That the decision of the taxing Officer delivered on 23rd July 2020 on the Third Party’s Bill of Costs dated 19th November 2019, the quantum awarded thereon and the reasoning with respect to the said award be set aside.

4. That the Honourable Court be pleased to re – tax the Third Party’s Bill of Costs dated 19th November 2019.

5. In the alternative to prayer (4), the Honourable Court be pleased to remit the Bill of Costs dated 19th November 2019 for re – taxation before a different taxing Officer with appropriate directions therefore.

6. Costs of the application be in the cause.

The application is premised on the grounds set out therein and is also supported by the affidavit of the defendant.

The gravamen of the application is that the defendant is dissatisfied with the quantum arrived at by the taxing Officer and the reasons given in the ruling. That the Bill as taxed is manifestly high as compared to the work done. That the taxing Officer was biased against the defendant and erred in principle, law and facts by failing to take into account the nature of the matter and the amount involved. That the taxing Officer failed to consider the defendant’s submissions and this Court should interfere with the ruling on the assessment or refer it to another taxing Officer.

The application is opposed and FAUSTINE OSEWE an advocate of this Court and who has the conduct of this suit on behalf of the 3rd party filed a replying affidavit dated 28th September 2020 in which it is averred, inter alia, that following the Judgment delivered on 5th September 2019 which directed that the defendant meets the 3rd Party’s costs, the 3rd Party filed its Bill of Costs dated 19th November 2019. The same was taxed at Kshs. 176,535/= vide the taxing Officer’s ruling dated 23rd July 2020. Upon receipt of that ruling, the 3rds Party filed a reference by way of the Chamber Summons application dated 3rd August 2020 contrary to the provisions of Rule 11(1) of the Advocates Remuneration Order which require any party who objects to the decision of the taxing Officer to give notice in writing of the items to which he objects within 14 days. That the requirement to give such notice is not just a technical procedure of no practical significance but is like a Memorandum of Appeal. That it is only after such notice has been given that a reference can be filed. Further, that the application does not identify any particular item in the Bill of Costs which was wrongly taxed. In any case, the defendant did not file any submissions on the taxation and has also not complied with Rule 11(2) of the Advocates Remuneration Order which provides that within 14 days after receipt of the reasons from the taxing Officer, the party objecting may apply to the Judge by Chamber Summons setting out the grounds for objections. That the defendant has not sought extension of time to challenge the taxation and therefore there is no reference before this Court. The figure of Kshs. 176,535/= as taxed is quite modest and should be up – held and this application struck out with costs.

The application has been canvassed by way of written submissions.

I have considered the application, the rival affidavits and the submissions by Counsel.

Rule 11(1)(2)(3) and (4) of the Advocates Remuneration Order provides as follows: -

11(1) “Should any party object to the decision of the taxing Officer, he may within fourteen days after the decision give notice in writing to the taxing Officer of the items of taxation to which he objects.”

(2) The taxing Officer shall forthwith record and forward to the objector the reasons for his decision on those items and the Objector may within fourteen days from receipt of the reasons apply to a Judge by Chamber Summons, which shall be served on all the parties concerned setting out the grounds of his objection.”

(3) “Any person aggrieved by the decision of the Judge upon objection referred to such Judge under Subsection (2) may with the leave of the Judge but not otherwise, appeal to the Court of Appeal.”

(4) “The High Court shall have power in it’s discretion by order to enlarge the time fixed b y sub paragraph (1) or sub paragraph (2) for the taking of any step; application for such an order may be made by Chamber Summons upon giving to every other Interested Party not less than three clear days’ notice in writing or as the Court may direct, and may be so made notwithstanding that the time sought may have already expired.”

My understanding of this provision is that the jurisdiction of this Court to reconsider the decision of a taxing Officer in respect to a Bill of Cost is triggered by the Objector filing a “notice in writing to the taxing Officer of the items of taxation to which he objects.” That notice is to be given “within fourteen days after the decision” of the taxing Officer. Rule 11(4)of the same however allows an Objector an opportunity to apply for the enlargement of that period of fourteen days. In my view, although Rule 11(1) uses the word “may” which could be interpreted to mean that it is not mandatory for the Objector to give notice within fourteen days after the decision of the taxing Officer, a reading of the whole of Rule 11 and in particular sub – rule (4) makes it clear that unless the Judge enlarges the time set out in sub – rule (1), there can be no proper reference to the Judge. Otherwise, there would have been no purpose for enacting sub – rule (4).

It is not in doubt that the defendant in this case did not comply with the provision of Rule 11(1) as no notice was given within the time stipulated therein. This is conceded by the defendant and in the submissions by her Counsel, it is stated as follows: -

“On the issue of the application being misconceived on the ground that the Applicant has not given notice of the items of taxation to which she objects, we submit that the Applicant clearly stated that the quantum as awarded is manifestly high compared to the work done.”

The defendant’s Counsel has then gone ahead to cite the decision of the Court of Appeal in the case of NICHOLAS KIPTOO ARAP KORIR SALAT .V. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & OTHERS 2013 eKLRwhere the Court (OUKO JA) stated, inter alia, that: -

“Deviations from and lapses in form and procedure which do not go to the jurisdiction of the Court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not to be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent since such rules of procedure are complex and technical. Instead, in such instances, the Court should rise to it’s highest calling to do justice by sparing the parties the draconian approach of striking out pleadings.”

I have no quarrel with that noble principle which is indeed in consonant with the provisions of Article 159 of the Constitution which behoves the Courts to eschew “procedural technicalities” while dispensing justice. It is of course correct, as submitted by the defendant’s Counsel that in paragraphs 7 and 8 of her supporting affidavit, the defendant has averred that she is “dissatisfied with the quantum”and that“the Bill is manifestly high as compared to the work done therefore the same should be refereed to another taxing Officer.” That the defendant is dissatisfied with the manner in which the 3rd Party’s Bill of Costs was taxed is not in doubt. However, before she could mount any proper challenge to the same, the defendant was obliged to comply with the provisions of Rule 11(1) of the Advocates Remuneration Order. And since she did not do so, she still had a window under sub rule (4) to approach the Court to enlarge the 14 days period. She did not take advantage of that provision either. It is not enough that she disputes the Bill of Costs. It is only by complying with the rule as to notice that she could clothe this Court with the jurisdiction to interrogate her complaint.

The issue in the NICHOLAS KIPTOO ARAP KORI SALAT case (supra), was that the Appellant being dissatisfied with the Judgment of the High Court dismissing his Petition lodged both a Notice of Appeal and the Record of Appeal in time. However, the Respondents complained that they were not served in time and therefore sought that the appeal be struck out. In sustaining the appeal however, OUKO JA with whom MOHAMED JA concurred (with KIAGE JA dissenting) went on to add that: -

“It ought to be clearly understood that the Courts have not belittled the rule of procedural rules. It is emphasized that procedural rules are tools designed to facilitate adjudication of disputes; they ensure orderly management of cases. Courts and litigants (and their lawyer) alike, are thus enjoined to abide strictly by the rules. Parties and lawyers ought to be reminded that the bare invocation of the oxygen principle is not a magic word that will automatically compel the Court to suspend procedural rules. And while the Court, in some instances, may allow the liberal application or interpretation of the rules, that can only be done in proper cases and under justifiable causes and circumstances. That is why the Constitution and other statutes that promote substantive justice deliberately use the phrase that justice be done without “undue regard” to procedural technicalities.”

The Judge went on to add as follows: -

“In the circumstances of this appeal, it is common ground that the Notice of Appeal and the Record of Appeal were lodged within the time prescribed by the rules. The Record of Appeal was similarly served within the time allowed. The only sticking point is the service of the Notice of Appeal on the Respondents within 7 days as required by Rule 77. ”

The NICHOLAS KIPTOO ARAP KORIR SALAT case (supra) does not, in my view, advance the defendant’s case at all for the simple reason that in that case, the Notice and Record of Appeal were filed in time. The only infraction was service. There was therefore an appeal before the Judges though not served. If the same analogy is extended to this case, without the Notice under Rule 11(1), there is not “appeal” before me upon which I can proceed to exercise any discretion that I may have in this matter. The bottom line is that without compliance with Rule 11(1) of the Advocates Remuneration Order, there is no reference before me to enable any consideration of the taxing Officer’s decision and to purport to do so would amount to a nullity.

Counsel for the defendant also cited the decision in MUMIAS SUGAR COMPANY LTD .V. TOM OJIENDA & ASSOCIATES 2018 eKLR. That case does not also aid the defendant at all because the application therein sough leave to file a reference out of time. In this case, as I have already stated above, no application to extend time has been filed. And all the other cases cited by the defendant’s Counsel in his submissions deal with cases where there was already a reference before the Judge for consideration.

It must be clear by now that in this case, there is not mere “deviation” or “lapse in form” which can justify this Court to proceed to consider re – taxing the Bill of Costs dated 19th November 2019 or even remit it to another taxing Officer as sought by the defendant. In the absence of compliance with Rule 11(1) of the Advocates Remuneration Order, there is no reference before me. The defendant’s Chamber summons dated 3rd August 2020 is for striking out.

The up – shot of all the above is that having considered the defendant’ Notice of Motion dated 13th December 2019 and the Chamber Summons dated 3rd August 2020, I make the following orders: -

1. The Notice of Motion dated 13th December 2019 is allowed only to the following extent: -

(a) An order of injunction is issued restraining the plaintiff either by himself, his servants, agents or anyone whomsoever acting on his behalf from entering, remaining in occupying or continuing to occupy, constructing on, alienating, selling or doing any act on the land parcel NO KISUMU MUNICIPALITY L.R NO 25793 pending the hearing and determination of the appeal.

(b) The defendant shall meet her own costs of that application.

2. The Chamber Summons dated 3rd August 2020 is struck out with costs to the 3rd Party.

Boaz N. Olao.

J U D G E

20th November 2020.

Ruling dated and signed at BUNGOMA this 20th day of November 2020. The same is delivered by way of electronic mail this 20th day of November 2020 with notice to the parties in keeping with the COVID – 19 pandemic guidelines.

Boaz N. Olao.

J U D G E

20th November 2020.