[2019] KEELC 4260 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

ELC PETITION NO. 28 OF 2013

M’MUGAINE M’NAINGABU.........................................PETITIONER

VERSUS

KARUTA MBERIA.................................................1ST RESPONDENT

FRIDA KAMBANJA MBERIA............................2ND RESPONDENT

THE LAND ADJUDICATION OFFICER

TIGANIA EAST/WEST DISTRICT....................3RD RESPONDENT

THE HON. ATTORNEY GENERAL.................4TH RESPONDENT

RULING

1. The Notice of Motion dated 24th September, 2018 which has been filed by the 1st and 2nd Respondents seek the following orders:

(a) That this application be certified as urgent and the same be heard urgently.

(b) That there be a stay of execution of the judgment delivered on 29/8/2018, pending the hearing and determination of the intended appeal to the court of appeal.

(c) Costs be provided for.

2. The application cites no law under which it has been brought but it is premised on the grounds on the face of the motion and supported by the affidavit of Karuta Mberia sworn on 24th September, 2018. In that affidavit it is deponed that a notice of appeal has been filed; that the petitioner has never used, farmed, entered occupied or dealt in any manner whatsoever with the land parcels 1417 and 3241; that the said land parcels have been the property of the 1st and 2nd applicants for over 20 years; that the intended appeal will be based on the fact that the petitioner’s Objection No. 649 against parcel number 1417 Kitharene Adjudication Section was heard and dismissed on 21/4/1998, which proceedings the trial court never considered, and the results entered into the necessary adjudication records; that there is no provision for a second hearing; that there are therefore serious issues to be settled at the appeal level and certified copies of the proceedings and judgement have been requested.

3. The petitioner filed grounds of opposition dated 22nd October, 2018which state that the application before me does not satisfy the threshold set out in Order 42 Rule 6of theCivil Procedure Rules 2010 and therefore lacks merit.

4. The applicants filed their submissions on 8th January, 2019. I have perused the court record and found no submissions filed on behalf of the petitioner in respect of the instant application as at the time of the writing of this ruling.

5. Order 42 rule 6(2) of Civil Procedure Rules provides as follows:-

“(2) No order for stay of execution shall be made under sub rule 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.”

6. Before the court delves into any other issue in an application of this nature the court must first make an inquiry as to whether the application has been brought without unreasonable delay.

7. The judgment in this suit was delivered on 29th August 2018and the instant application was filed on 24/9/2018. That is a period of less than one month. In my view that period does not amount to unreasonable delay.

8. Next, an examination of the issue as to whether an appeal has been filed is necessary. I have examined the record and I am satisfied that there is an appeal in place. A valid notice of appeal is in practice considered to be an appeal for the purpose of an application for stay of execution. That is the import of Rule 42 (4) of the Court of Appeal rules.

9. The next stop is an inquiry as to whether the applicant may suffer substantial loss. In my view the supporting affidavit does not specify any potential loss. It merely alleges that the land has been in the hands of the applicants for over 20 years. On this issue the application should fail.

10. Lastly, there is no offer of security from the applicants. Considering that they would, perchance their application were allowed, continue to be in possession of the suit land while the applicant who currently holds a decree in his favour was kept from enjoying the fruits of the decree that he holds. Without any offer of security this court would not find such an application meritorious. Of course the court may order security to be deposited but the willingness by the applicants is normally a starting point in that direction, and is expressed in the application.

11. In this case, even if this court were consider the issue of security favourable and impose it upon the applicants, it has already found that there is no proof of potential loss to be sustained by the applicants in the event the orders sought were not issued.

12. I consider that all the conditions set out in Order 42 rule 6(2) of Civil Procedure Rules must exist at the same time in order for the applicant to qualify for a stay of execution order. Where one of them, has not been satisfied, and in this case the applicants have failed to establish two, then the stay of execution orders may not be granted.

13. In the final analysis I find that the application has no merit and the same is dismissed with costs to the respondent.

Dated, signed and delivered at Meru this 1stday of March, 2019.

MWANGI NJOROGE

JUDGE

ENVIRONMENT AND LAND COURT, KITALE