[2009] KEHC 3288 (KLR)
The court found that the appellant, Nakuru Municipal Council, had indeed transferred the suit land after being served with an injunction order, and its claim of non-service was unsupported by affidavit evidence and thus rejected. However, since a title deed had already been issued to the second defendant, Murima...
Source-derived case information.
- Citation
- [2009] KEHC 3288 (KLR)
- Parties
- Appellant: Nakuru Municipal Council; Respondent: Murima Muturi; Respondent: John Njoroge Wainaina
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 41 of 2009
- Procedural Posture
- Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed with preservation orders.
- Legal Topics
- Stay of Execution, Contempt of Court, Injunctive Relief, Land Alienation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nakuru Municipal Council
Appellant
Murima Muturi
Respondent
John Njoroge Wainaina
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the Chief Magistrate's order pending appeal.
- 2 Whether the appellant's claim of non-service of the injunction order is credible.
- 3 Whether compliance with the Chief Magistrate's order is possible given the current status of the land title.
Ratio Decidendi
The court found that the appellant, Nakuru Municipal Council, had indeed transferred the suit land after being served with an injunction order, and its claim of non-service was unsupported by affidavit evidence and thus rejected. However, since a title deed had already been issued to the second defendant, Murima Muturi, and the Chief Magistrate's order did not direct him to re-transfer the property, compliance with the order was deemed impossible for the Council alone. The court therefore allowed the application for stay of execution, not on the merits of the appellant's conduct, but because the operative order could not be complied with as framed. To preserve the subject matter and...
Court Disposition
Application for stay of execution allowed with preservation orders.
Orders
- A restriction shall be registered against the title to the suit land until the appeal is heard and determined.
- Murima Muturi shall within seven days of service of this order deposit the title deed with the Deputy Registrar for safe custody until the appeal is determined.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Appeal 41 of 2009
NAKURU MUNICIPAL COUNCIL………..APPELLANT
VERSUS
MURIMA MUTURI……………….…1ST RESPONDENT
JOHN NJOROGE WAINAINA…….2ND RESPONDENT
RULING
On 15th March 2004 the Senior Resident Magistrate at Nakuru issued an order in Nakuru CMCC 474 of 2004 restraining the Municipal Council of Nakuru, the appellant in this appeal and one Murima Muturi who was the defendant in that case from repossessing, alienating, transferring, selling, developing, leasing out or in any other way interfering with the piece of land known as Race Track Plot No. ‘A’693 pending the hearing and determination in that case. In defiance of that order the Municipal council went ahead and alienated the plot to the said Murima. Aggrieved by that order the plaintiff in that case, John Njoroge Wainaina who is the respondent in this appeal applied to cite the Council for contempt. Pursuant to that application on 12th February 2009 the Chief Magistrate found that the Municipal Council was in contempt of the said order and directed its Town Clerk to reverse the process that had been undertaken and revert the suit piece of land back to the position it was before it was transferred to the second defendant in that case and further ordered that the council would not be given audience until it purged its contempt.
The Council is aggrieved by that decision and has preferred this appeal. After filing the appeal the Council has applied under Order 41 Rule 4 of the Civil Procedure Rules for stay of execution of the Chief Magistrate’s order directing to revert the suit piece of land to the respondent.
Urging the application on behalf of the Council Mrs Mbeche argued that if stay is not granted the Town Clerk may be punished for contempt of court and that will render the appeal nugatory.
Mr. Waiganjo for the respondent strongly opposed the application arguing that applicant should not be allowed to benefit from its fragrant disobedience of the court order.
I have considered these submissions. It is not in dispute that the Council transferred the suit piece of land on the 15th March 2004 after the order of injunction issued and served on it on 5th March 2004. Its contention that it was not served with the order is not in the affidavit in support of this application. It has only been raised from the bar by Mrs Mbeche. In the circumstances I must reject that contention. However as a titled deed has been issued to the second defendant in that case, it would appear that it will be impossible for the Council to comply with the Chief Magistrate’s order. Re-transfer of the property will require the second defendant to execute a transfer but the Chief Magistrate’s order is not directed to him. For that reason alone I allow this application.
So that no prejudice is caused to either party, in exercise of my inherent powers, I direct that a restriction shall be registered against the title to the suit land until this appeal is heard and determined and the second defendant in the lower court suit, Mr Murima Muturi, shall within seven days of service of this order upon him deposit the title deed relating to that piece of land with the Deputy Registrar of this court to be kept in safe custody until this appeal is heard and determined. Mr. Muturi is also hereby restrained from carrying out any development on that piece of land until this appeal is determined.
DATED and delivered at Nakuru this 29th day of May 2009.
D. K. MARAGA
JUDGE.