[2021] KECA 1052 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OUKO, (P), NAMBUYE & KOOME, JJ.A.)

CIVIL APPLICATION NO. E229 OF 2020

BETWEEN

MICHAEL KARUKU GATURA............................................................APPLICANT

AND

DOUGLAS MUINDI KANGETHE.................................................1STRESPONDENT

JAMES KAMAU KANGETHE.......................................................2NDRESPONDENT

HANNA WAIRIGU GATHURI........................................................3RDRESPONDENT

JOHN KAGAI NGURE.....................................................................4THRESPONDENT

(Being an application for the stay of execution of the Judgment of the Environment and Land Court at Nairobi (Lady Justice J.M. Onyango, J.) delivered on 18thMay, 2020

in

ELC Case No. 605 of 2016

Consolidated with

ELC Case No. 758 of 2016)

**********

RULING OF THE COURT

What the applicant wishes to contest in this Court on appeal is the decision of the Environment and Land Court (M. Onyango,J.) in two consolidated claims, Nairobi ELC Case Number 605 of 2010 and Number 758 of 2016, in which the learned Judge entered judgment in favour of the respondents and declared that they were entitled to Land Parcel No. Dagoretti/Mutuini/1139 by adverse possession and further that the sub-division of that parcel into 7 parcels by the applicant was null and void. In the end, she ordered the new titles cancelled and the applicant to transfer;

“(i) One acre from his Land Parcel No Dagoretti/Mutuini/1139 to the 1st and 2nd plaintiffs who shall hold the land in trust for the Estate of Hanna Kabura Kangethe;

(ii) 0. 75 of an acre from his land Parcel No Dagoretti/Mutuini/1139 to the 3rd plaintiff who shall hold it in trust for the Estate of Gathuri Kabera; and

(iii) 0. 25 of an acre from his Land Parcel No. Dagoreti/Mutuini/1139 to the 4th plaintiff who shall hold it in trust for the Estate of Daniel Ngure Kuria.

(c) The Deputy Registrar is hereby authorized to sign the relevant transfer documents, mutation forms, application for transfer of land and consent forms should the defendant fail to do so in terms of order (b) above.

(d) ELC Case No 758 of 2016 is found to be without merit and is dismissed.

(e) The cost of this suit shall be borne by the defendant”

The applicant brings the instant motion pursuant to Rule 5(2)(b) of the Court’s Rules in order to stay the execution of the foregoing orders pending appeal arguing, in satisfaction of the first requirement of that rule, that the Judge erred in relying on documents whose authenticity was questionable; in failing to acknowledge that the respondents did not enjoy quiet possession throughout their occupation of the suit property; that the learned Judge ought to have found that the respondents, having executed a lease agreement, their status on the land was that of lessees and not purchasers; and that the applicant lawfully and with the knowledge of the respondents subdivided the suit property.

To meet the second limb, the applicant has urged us to find that the appeal, if successful, will be rendered nugatory as he stands to lose hisbona fidelegal ownership of the suit property if it is transferred to the respondents; that he will be rendered destitute and face imminent loss of finance given the investment he has made on the property.

The respondents, in response, have insisted that the appeal is not arguable; that adverse possession was proved to the required standard as the court so found in Civil Case Nos. 2803 and 2804 of 1989 in favour of the respondents; that in dismissing the respondents’ application for stay of execution, the trial court, in a ruling delivered on 27th July, 2020, allowed the respondents to enforce the judgment but directed that once the suit property was subdivided and registered, the respondents were restrained from disposing of them for 90 days from the date of that ruling; and that as a result, the appeal will not be rendered nugatory. They also contend that the appeal will not be rendered nugatory because all the parties live on the suit land; that if the orders to subdivide the suit land and register the subdivisions were to be executed, and in the event the appeal succeeded the same were capable of being reversed.

In dealing with an application underRule 5(2) (b),the court exercises original and discretionary jurisdiction. So that, irrespective of the outcome of a similar application before the trial below, a party can nonetheless make an independent application and even a similar application to this Court. SeeRuben & 9 Others vs.Nderitu & Another(1989) KLR 459.

In considering an application under this rule, two things must be demonstrated, that the appeal or intended appeal is arguable and not frivolous; and that the appeal or intended appeal, if successful, will be rendered nugatory if the order of stay is not granted. SeeDavid Morton Silverstein vs. Atsango Chesoni,Civil Application No. Nai 189 of 2001. We stress that the applicant must satisfy both principles; and that it is sufficient if a singlebonafidearguable ground of appeal is raised in addition to showing that the appeal or intended appeal, if successful will be of no purpose for the applicant.

We are enjoined at this stage not to make definitive conclusions of either fact or law; and whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed, if allowed to happen, is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.

Obviously, the question of whether or not the learned Judge had sufficient evidence to prove adverse possession is itself arguable.

However, it is doubtful to us that the appeal, if successful, will be worthless and all else in vain. First, apart from the temporary order restraining the respondents from disposing of the suit land, there is uncontroverted evidence that the respondents live on the suit land. They have themselves explained that they do not intend to dispose of the land. We are persuaded by these factors that the appeal will not be rendered nugatory. Without satisfying the second limb, it follows that the applicant’s motion must fail.

Accordingly, it is dismissed, with costs being in the intended appeal.

Dated and delivered at Nairobi this 29thday of January, 2021.

W. OUKO, (P)

....................................

JUDGE OF APPEAL

R.N. NAMBUYE

.....................................

JUDGE OF APPEAL

M.K. KOOME

....................................

JUDGE OF APPEAL

I certify that this is a truecopy of the original.

Signed

DEPUTY REGISTRAR