[2023] KEELC 18268 (KLR)

Minju v Tagi & 4 others (Environment and Land Appeal E028 of 2022) [2023] KEELC 18268 (KLR) (15 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18268 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment and Land Appeal E028 of 2022

LC Komingoi, J

June 15, 2023

Between

Elvis Maina Minju

Appellant

and

Julia Jebet Tagi

1st Respondent

Georffrey Kinyanjui Mungai

2nd Respondent

The Attorney General

3rd Respondent

Land Registrar Kajiado

4th Respondent

Co-Operative Bank Of Kenya Ltd

5th Respondent

Ruling

1. This is the Notice of Motion dated July 4, 2022 brought under;(Under section 63 of the Civil Procedure Act chapter 21 of the laws of Kenya, order 42 rule 6 and order 51 of the Civil Procedure Rules Section 1, 1A, 3A of the Civil Procedure Act chapter 21 of the laws of Kenya).

2. It seek orders;1. Spent

2. Spent

3. That this Honourable court be pleased to Order stay of execution of the judgement and/or decree by Honourable Kahuya I.M. Principal Magistrate on 2nd June, 2022 pending the hearing and the final determination of this Appeal.

4. That the costs of this application be provided for.

3. The grounds are on the face of the application and are set out in paragraph a to g.

4. The application is supported by the Affidavit of Elvis Maina Minju, the Appellant herein, sworn on the July 4, 2022.

5. The application is opposed. There is a Replying Affidavit sworn by the 1st Respondent on July 18, 2022. She also filed grounds of opposition dated the same date.

6. The 2nd to 5th Respondents who were duly served did not file any responses.

7. On the October 19, 2022 the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions.

The Appellants’ Submission. 8. They are dated November 25, 2022. Counsel submitted that the Appellant has demonstrated that there is sufficient cause to order a stay of execution as he is the registered owner whose title was the first one in time and the 1st Respondent could not have been a bonafide purchaser for value as the person she bought from was a fraudster who could not pass a valid title.He had put forward the case of Lawrence P. Mukiri Mungai v Attorney General & 4 Others.

9. It is also submitted that the Appellant still holds a valid title deed for the property issued. On November 13, 1991 and if there was an issue on which one prevails it is obvious that this title prevails.Reliance is placed on the case of Christine Kavenge Ndavivs.Davis George Njoroge Muniu &another [2021]eKLR.

10. It is further submitted that the Appellant is the owner of the Land parcel known as Kajiado/Kitengela/3428 prior to the fraudulent transfer by the 2nd Respondent who subsequently transferred to the 1st Respondent.

11. Counsel further submitted that if the orders sought are not granted the restriction registered against the title will be lifted making it possible for the suit property to be sold and transferred and or charged to third parties. This would render the appeal nugatory should it succeed.

12. It is submitted that it is in the interest of Justice that orders of Stay be granted to preserve the suit property pending hearing and determination of the Appeal.

13. Counsel finally submitted that the application has been made without any delay. He prays that the application be found to be merited and be allowed.

The 1st Respondent’s Submissions. 14. They are dated December 5, 2022. Counsel submitted that the applicant has to set out the full particulars of the kind of loss that may result to him if the stay is not granted as merely stating that he will suffer loss without proving will not suffice.He has put forward the cases of Nicholas Mutuku Mwasuna v Patricia Mueni Kilonzo [2022] eKLR;Machira t/a Machira & Co. Advocates v East African Standard [2002]eKLR;James Wangalwa & Another v Agnes Naliaka Cheseto [2021]eKLR.

15. It is further submitted that the Applicant has to particularize such substantial loss and provides sufficient evidence to support such assertion or contention.

16. That the entries in the green card shows that the 1st Respondent is the registered proprietor of the suit property hence the Appellant is not likely to suffer any loss.

17. It is also submitted that the 1st Respondent has a right to enjoy the fruits of her judgment and that the application ought to be dismissed with costs.

18. I have considered the Notice of Motion and the Affidavit in support. I have also considered the response thereto, the written submissions and the authorities cited. The issues for determination are;i.Whether the Appellant’s/Applicant’s application meets the threshold for grant of orders of stay of execution pending appeal.ii.Who should bear costs of this application?

19. The principles guiding the grant of stay of execution pending appeal are well settled.Order 42 rule 6(2) of the Civil ProcedureRules provides that;(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; andb.Such security as the court orders for due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

20. It is clear from the above Provisions that for an order of stay of execution to be granted specific conditions must be met by the Applicant.

21. I have considered the Notice of Motion herein and I find that it has been brought without unreasonable delay.

22. It is the Appellant’s/Applicant’s case that if these orders are not granted, the restriction registered against the title will be lifted making it possible for the suit property to be sold and transferred to third parties.

23. It is also his contention that this will render the appeal nugatory.

24. It is his case that his title was the first in time and that the 1st Respondent could not have been a bona fide purchaser for value as the person she bought from was a fraudster.

25. The 1st Respondent on the other hand states that she is the registered owner of the suit property hence the Appellant is unlikely to suffer any loss.

26. The Appellant has maintained that his title was issued on November 13, 1991. He stated that he has never sold the suit property to the 2nd Respondent or anybody else. That to date he still holds a valid title to the suit property.

27. I find that he has demonstrated that he will suffer substantial loss if the restriction is lifted by the 4th Respondent. The suit property is already charged to the 5th Respondent whom may dispose to third parties.In the case of Feissal Amin JanMohammed t/a Dunvia Forwaders v Shami Trading Co. Ltd [2014]eKLR, Kasango J Stated as follows;“It is trite law therefore that a stay of execution order is generally granted if the applicant has successfully demonstrated that a substantial loss may result to him unless the order is made, that the application was made without unreasonable delay and that the applicant has offered proper security”.

28. In the case of Butt v Rent Restriction Tribunal [1982] KLR 447 the Court of Appeal stated thus;"i.The power of the court to grant or refuse an application for stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.ii.The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance; a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.iii.A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to the Applicant at the end of the proceedings.iv.The court in exercing its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the Appellant had an undoubted right of Appeal”.The Appellant/Applicant has stated that he is ready to abide by the just terms of stay if given by this Honourable Court.In conclusion, I find merit in this application and I grant the orders sought namely;a.That there be stay of execution of the judgement and decree issued on June 2, 2022 by IM Kahuya Principal Magistrate and all consequential orders pending the hearing and determination of the Appeal on conditionthat the Appellant does deposit Kshs 300,000/ as security for costs in a joint interest earning account in the name of his counsel and that the Respondent within forty five (45) days from the date of this Ruling. In default, the order of stay of execution shall lapse automatically.b.That costs of this application do abide the outcome of the Appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JUNE, 2023 AT KAJIADO.L. KOMINGOIJUDGE.In the presence of:Mr Gaita for the AppellantMr. Muchai for the 1st Respondent.N/A for the 2nd – 4th Respondents.Mr. Akhulia for the 5th Respondent.Court Assistant – Mutisya.