[2024] KEELC 3587 (KLR)

Ndiritu v Gichiri & 8 others (Environment and Land Appeal E003 of 2024) [2024] KEELC 3587 (KLR) (12 April 2024) (Ruling)

Neutral citation: [2024] KEELC 3587 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment and Land Appeal E003 of 2024

JG Kemei, J

April 12, 2024

Between

Naftali Irungu Ndiritu

Appellant

and

Paul Njoroge Gichiri

1st Respondent

Jane Wangui Ngugi

2nd Respondent

John Muoria Waithaka

3rd Respondent

Margaret Wanjiru Gathoni

4th Respondent

Samuel Mungai Wanja

5th Respondent

Peter Chege Gathungu, James Kamau Kungu, Kennedy Gitongo Ngugi Suing On Behalf Of Kibichiku Witeithie Self-Help Group

6th Respondent

Irene Muthoni Gathi

7th Respondent

Florence Wanjiku Muigai

8th Respondent

Eliud Kiarie Njenga t/a Pink Properties Developers

9th Respondent

Ruling

1. The Appellant/Applicant filed the instant Motion dated 20/1/2024 expressed under Sections 1A, 1B, 3 and 3A Civil Procedure Act and Order 42 Rule 2 Civil Procedure Rules seeking orders of stay of execution of the Judgment delivered in Ruiru ELC No. 6 of 2019: Paul Njoroge Gichiri & Others Vs. Eliud Kiarie Njenga & Anor.

2. The gist of the Application and the Supporting Affidavit of even date sworn by Naftali Irungu Ndiritu, the Appellant/Applicant is that the trial court delivered the impugned Judgment wherein it revoked the Appellant’s title to the suit property and directed the Lands registrar to register the Respondents as the rightful proprietors thereof. That he applied and was granted interim stay of execution for 45 days pending the formal Application for stay. Further that there was a delay in obtaining copies of the Judgment and proceedings but that notwithstanding, he has filed the instant appeal which he believes is arguable and has high chances of success.

3. Moreover, the Appellant contends that the trial court lacked jurisdiction to entertain the suit despite his objection. That the trial court disregarded his rights as a bona fide purchaser and went ahead to un-procedurally enjoin the Respondents in the suit. He urged the court to preserve status quo pending the hearing and determination of the appeal.

4. Despite service as shown by the Affidavit of Service sworn on 10/2/2024, the Application is unopposed. The Application was argued orally before Court on 7/3/2024.

5. The main issue for determination is whether the Application is merited.

6. The legal provisions for stay of execution are anchored in Order 42 rule 6 of the Civil Procedure Rules that;“6. Stay in case of appeal [Order 42, rule 6. ]

(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the Application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on Application being made, to consider such Application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have such order set aside.(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.”

7. It is trite that for an Applicant to succeed in an Application of this nature, one must establish three conditions namely; establishment of substantial loss, timely filing of the Application and the furnishing of security. An order for stay of execution is discretionary upon proving sufficient cause by satisfying the said conditions.

8. The Applicant has annexed a copy of the impugned Judgment in favor of the Respondents. Has the Applicant demonstrated any substantial loss he is likely to suffer if an order of stay is denied? Discussing the scope of execution viz proof of substantial loss, Gikonyo J described it as follows in James Wangalwa & Another Vs. Agnes Naliaka Cheseto [2012] eKLR:-“… the fact that the process of execution has been put in motion, by itself, does not amount to substantial loss …. The Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. That is what substantial loss would entail ….”

9. In addition, the ingredients of substantial loss were well captured by Kuloba J (as he then was) in the case of Machira T/A Machira & Company Advocates Vs. East African Standard (No 2) 2002 2 KLR as follows:-“If the Applicant cites as a ground, substantial loss the kind of loss likely to be sustained must be specified, details or particulars thereof must be given and the conscience of the Court, looking at what will happen unless a suspension or stay is ordered, must be satisfied that such loss will really ensue and that if it comes to pass, the Applicant is likely to suffer substantial injury by letting the other party proceed further with what may still be remaining to be done or in execution of an awarded decree or order before disposal of the Applicant’s business (e.g. appeal or intended appeal).”

10. The Judge went on to add that::-“Moreover, a Court will not order a stay upon a mere vague speculation; there must be the clearest ground of necessity disclosed on evidence ……. Another common factor in favour of the Applicant is whether to proceed further or to execute may destroy the subject matter of the action and deprive the appellant or intended appellant of the means of prosecuting the appeal or intended appeal. So, really, stay is normally not granted, save in exceptional circumstances.”

11. It is trite therefore that the execution itself does not amount to substantial loss. The Applicant need to show the state of affairs that will be rendered nugatory if the same is not allowed. The Applicant in his Supporting Affidavit averred that should the Respondents alienate the suit property, the Applicant will not be able to recover the land should he succeed on appeal. Further he added that the Respondents will not suffer any prejudice in light of the period of the trial court case of five years that he has not attempted to alienate the suit property.

12. On the limb of timeous filing of the Application, the Application was filed on 23/1/2024, almost two months after delivery of Judgment. The Application was filed well within the interim stay of execution granted by the trial court. The Applicant deponed that he encountered delay in obtaining a copy of the Judgment for his prompt action, which averment remains uncontroverted. The court finds that the period of two months is not inordinate.

13. The last precondition in an Application of this nature is an offer for security for the due performance of the decree by the Applicant. No offer for security has been proffered by the Applicant. However, the court’s inherent powers to order for such security is unfettered under Section 3A of the Civil Procedure Act.

14. The court finds that purely in the interest of justice and to ensure that the appeal is not rendered nugatory, the Application is allowed pending the hearing of the Appeal.

15. I make no orders as to costs.

16. Orders accordingly.

DATED, SIGNED & DELIVERED AT THIKA VIA MICROSOFT TEAMS THIS 12TH DAY OF APRIL, 2024. J G KEMEIJUDGEDelivered online in the presence of;Mutuku for the AppellantRespondents - AbsentCourt Assistants – Phyllis / Oliver