[2020] KECA 747 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: KIAGE, GATEMBU & SICHALE, JJ.A)

CIVIL APPLICATION NO. 89 OF 2020BETWEEN

MOHAMED SHAHID MOUGHAL...............................................APPLICANT

AND

MICHAEL MOOKE KIKAYE.............................................1STRESPONDENT

THE LAND REGISTRAR KAJIADO................................2NDRESPONDENT

THE NATIONAL LAND COMMISSION..........................3RDRESPONDENT

THE ATTORNEY GENERAL.............................................4THRESPONDENT

ESTATE OF LEKERRA OLE KIKAE..............................5THRESPONDENT

ESTATE OF LEKERA KIKAE REIPA..............................6THRESPONDENT

(Being an application for stay of execution of the Judgment of the

Environment and Land Courtat Kajiado (C. Ochieng, J.)

delivered on 2ndMarch 2020

in

ELC Case No. 753 of 2017)

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RULING OF THE COURT

1. The applicant, Mohammed Shahid Moughal, has applied bynotice of motion dated 19thMarch 2020 for orders of stay of execution of the judgment and decree of the Environment and Land Court at Machakos in ELC Case No. 753 of 2017delivered on 10thMarch 2020 dismissing his suit and restraining him from interfering with “resultant subdivisions of land parcelnumber Kajiado/Ildamat/3” which the applicant claims to have purchased. The application is made under Rule (5)(2)(b) of the Court of Appeal Rules. He also seeks an order to restrain the Land Registrar, Kajiado, the 2ndrespondent, from effecting any transaction on the said property pending the hearing and determination of the intended appeal from the said judgment. A notice of appeal was duly filed on 10thMarch 2020.

2. In his affidavit sworn on 19th March 2020 in support of the application, the applicant deposes that he entered into threeseparate agreements with the 1strespondent for the purchase of the property; that the learned Judge overlooked, or failed to consider one of those agreements in reaching the conclusionthat the 1strespondent did not have legal capacity to sell the property in the absence of letters of administration; that had the Judge considered that letters of administration were inplace when the third agreement of 30thOctober 2013 was executed, the Judge would have reached a different conclusion.

3. Directions were given, in view of the Corona virus epidemic, that oral arguments would be dispensed with and the application would be considered on the basis of the application itself, affidavits and written submissions. In that regard, the application was listed for our consideration in the Recess Cause of Thursday 16th April 2020 by which time no replyingaffidavit or submissions had been filed on behalf of the respondents.

4. We have considered the material before us including the memorandum of appeal annexed to the application and the applicant’s advocates written submissions and are satisfied that the intended appeal is not frivolous. There is for instance the contention that the Judge failed to consider that at the time the3rdagreement for sale was executed on 30thOctober 2013, the 1strespondent had already obtained a certificate of confirmation of grant. We think the intended appeal is arguable.

5. As to whether the intended appeal will be rendered nugatory unless the orders sought are granted, the applicant asserts that it has been in possession of the property since 2009; and that further dealings with the property before the intended appeal is heard and determined would put the property out of his reach should the appeal succeed. We are in the circumstances persuaded that the property should be preserved pending the hearing and determination of the appeal.

6. We accordingly allow the application in terms of prayer 5thereof with the result that the 2ndrespondent is hereby ordered not to effect any further transaction on the property known as Title Number Kajiado/Ildamat /3 or on any resultant

subdivisions pending the hearing and determination of the intended appeal. Costs of the application shall be in the intended appeal.

Orders accordingly.

Dated and delivered at Nairobi this 24thday of April, 2020.

P.O. KIAGE

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JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

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

JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

I certify that this is atrue copy of the original

Signed

DEPUTY REGISTRAR