[2024] KEELC 14031 (KLR)

Ndaya (Suing as the legal representative of the Estate of Mwangi Mbae - Deceased) v Njuguna (Environment and Land Appeal E074 of 2024) [2024] KEELC 14031 (KLR) (16 December 2024) (Ruling)

Neutral citation: [2024] KEELC 14031 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment and Land Appeal E074 of 2024

BM Eboso, J

December 16, 2024

Between

Benedetta Muthoni Ndaya (Suing As The Legal Representative Of The Estate Of Mwangi Mbae - Deceased)

Appellant

and

Samuel Mwangi Njuguna

Respondent

(Being an Appeal against the Judgment of Hon D. Milimu, Senior Resident Magistrate, delivered on 29/7/2024 in Thika Chief Magistrate Court Civil Case No 40 of 2000)

Ruling

1. The subject of this ruling is the appellant’s notice of motion dated 31/7/2024, through which she seeks an order of stay of execution of the ruling rendered on 29/7/2024 by Hon. D. Milimu (SRM) in Thika Civil Case No 40 of 2000 [currently captured in the e-portal as Thika MCLE Case No E040 of 2000], pending the hearing and determination of this appeal. The lower court issued the following orders through the impugned ruling: (i) an order joining Benedetta Muthoni Ndaya [the legal representative of Mwangi Mbae – deceased] as a defendant in the suit in place of the deceased; (ii) a declaration that Samuel Mwangi Njuguna is entitled to a 2. 69 acre portion of land parcel number Loc 4/Kaguthi/ 402; (iii) an order directing the Muranga County Land Surveyor to ascertain the persons who were occupying more land than their rightful share and were therefore encroaching on other people’s share of the land and file a report; and (iv) an order directing that the Muranga County Land Surveyor’s costs be borne by Samuel Mwangi Njuguna in the interim pending the filing of the report.

2. The application was supported by an affidavit sworn by Benedetta Muthoni Ndaya on 31/7/2024. It was canvassed through written submissions dated 4/10/2024, filed by M/s Wangui Njoroge & Company Advocates. The appellant’s case is that on 29/7/2024, Hon. D. Milimu delivered the impugened ruling in Thika MCLE Case No 40 of 2000 in which she allowed the respondent’s application dated 18/4/2024. The appellant contends that, aggrieved by the said ruling, she lodged this appeal. The appellant is apprehensive that the respondent may proceed and execute the above orders. The appellant contends that in the event the above orders are executed, the appellant’s estate and third parties who were not parties to the suit at the lower court would stand to suffer irreversible loss. The appellant further contends that this appeal might also be rendered nugatory. The appellant adds that it is in the interest of justice that this application should be allowed.

3. The respondent opposes the application through his replying affidavit dated 19/8/2024 and through written submissions dated 25/9/2024, filed by M/s Lillian Marion Associate Advocates. The respondent contends that he has already commenced the process of execution of the above orders by initiating the survey process on land parcel numbers Loc.4/Kaguthi/160 and Loc.4/Kaguthi/402 [hereinafter referred to as the “suit parcels”]. The respondent further contends that this Court cannot be called upon to issue orders in vain especially where the reliefs sought have been overtaken by events. The respondent states that no prejudice will be occasioned upon the appellant if the land surveyor is allowed to determine the boundaries of the suit parcels. The respondent adds that the survey work is intended to bring to light issues that will assist the court in its determination, hence it cannot be said to render the appeal nugatory.

4. The respondent further opposes the application on the ground that no arguable appeal has been demonstrated by the appellant. The respondent argues that the appellant is only fearful that once the land surveyor confirms that there is indeed a discrepancy in acreage of the suit parcels, then she would be required to remedy the encroachment. The respondent further argues that this appeal only seeks to conceal the fact that the appellant has encroached onto the respondent’s parcel of land, a fact which the appellant admitted in paragraph 5 of her supporting affidavit sworn on 31/7/2024.

5. The respondent contends that the appeal lacks basis, adding that it does not disclose any error on the part of the Learned Magistrate and that the application ought to be dismissed. The respondent further contends that the allegation that the appeal has high chances of success is a falsehood, adding that the appellant admitted to being in the wrong under paragraph 5 of her supporting affidavit. The respondent states that the claim that the orders affect parcels belonging to third parties is unsubstantiated. The respondent adds that the appellant cannot purport to represent third parties who are not parties in the dispute.

6. It is the case of the respondent that the allegation that the estate of the Mwangi Mbae (referred to in this ruling as “the deceased”) has already been subdivided is misleading and is an attempt at frustrating the outcome of the lower court's decision on the boundary dispute. The respondent argues that the fact that the subdivision was illegally done during the pendency of the suit does not in any way preclude the District Surveyor from writing a report on the current status and acreage of the suit parcels. The respondent further argues that no prejudice will be suffered by the appellant if stay of the impugned ruling is declined.

7. I have considered the application, the response to the application, and the parties’ respective written submissions. I have also considered the relevant legal frameworks and jurisprudence. The single question to be determined in this ruling is whether the criteria for granting an order of stay of execution pending appeal has been met. I will be brief in my analysis and determination.

8. This court’s jurisdiction to grant an order of stay of execution pending appeal is regulated by the criteria contained in Order 42 rule 6 (2) of the Civil Procedure Rules which provides as follows:“(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 appellant 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 appellant.”

9. From a perusal of the materials presented to this court, it emerges that the ruling which culminated in this appeal was a post- judgment decision. The boundary dispute which existed between the respondent and the late Mwangi Mbae had been determined by the Kandara Land Disputes Tribunal. The award of the Tribunal was adopted as a Judgment of the Thika Chief Magistrate Court in Thika Chief Magistrate Court Civil Case No 40 of 2000 way back in July 2000. Given the above background, the jurisdiction of the Chief Magistrate Court was limited to execution of the decree of the court because there was no pending suit before the lower court.

10. While opposing the application that culminated in the impugned ruling, the appellant contended before the lower court that one of the affected land registers had been closed on subdivision and the resultant subdivisions were registered in the names of third parties who were not parties in the suit. In the present application, the appellant exhibited a certified copy of the land register relating to Fort Hall Loc 4 Kaguthi/160. A perusal of the register reveals that it was closed on 3/4/2001 on subdivision of the land, and that five (5) subdivisions were created out of the said land. The land registers relating to the five subdivisions were, however, not exhibited. If indeed the register was closed in 2001, there would be substantial prejudice if the post-judgment orders were to be enforced as if the original land register is still open.

11. On whether or not the appellant has an arguable appeal, the court notes that two key issues have been raised in the appeal. They relate to: (i) the enforcement of the decree after the lapse of 12 years; and (ii) the jurisdiction of the Chief Magistrate Court to grant the reliefs that the lower court granted in a post-judgment application. Without saying much, these are important issues which call for serious interrogation at the hearing of the appeal.

12. For the above reasons, the court finds that the criteria for grant of an order of stay of execution pending the hearing and disposal of an appeal has been met. Consequently, execution of the orders issued on 29/7/2024 in Thika Chief Magistrate Court Civil Case No 40 of 2000 is stayed pending the hearing and determination of this appeal. Unless extended by the Court, the above stay order shall lapse on the expiry of 12 months from today. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 16TH DAY OF DECEMBER 2024B M EBOSOJUDGEIn the Presence of: -Ms Njoroge for the Applicant/ AppellantMs Githinji of the RespondentCourt Assistant: Melita