[2023] KEELC 15986 (KLR)

Njaimwe v Ngugi & 2 others; Ngugi (Interested Party) (Environment & Land Case 380 of 2014) [2023] KEELC 15986 (KLR) (9 March 2023) (Ruling)

Neutral citation: [2023] KEELC 15986 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 380 of 2014

AA Omollo, J

March 9, 2023

Between

Annah Muthoni Njaimwe

Plaintiff

and

Phillip Kirichu Ngugi

1st Defendant

The Chief Land Registrar

2nd Defendant

Margaret Nyambura Ngugi

3rd Defendant

and

George Waweru Ngugi

Interested Party

Ruling

1. The plaintiff filed this suit against the defendants who jointly filed a defence and counter- claim and after a full hearing, a judgement was delivered on April 30, 2019 in favour of the defendants. The plaintiff’s suit was dismissed and judgment for the 1st,3rd and 4th defendants in terms of prayers (ii) and (iii) of their amended counter claim.

2. The applicant has filed the notice of motion application dated August 16, 2022 seeking for the following orders;1. Spent2. Spent3. That this court be pleased to grant a stay of execution of the Judgement delivered by the Justice S Okong’o on the April 30, 2019 pending the hearing and determination of the applicant’s appeal.4. That the costs of the application be provided for.

3. The motion was supported by an affidavit sworn by Cynthia K Nyabuto on the same date and the grounds listed on the face of the application inter alia; that they had filed a notice of appeal on the May 15, 2019 and record of appeal on July 11, 2019 and that the matter has gone through case management in the court of appeal, parties have already filed their submissions and the appeal is pending judgement.

4. The applicants stated that their appeal has a very high chances of succeeding and it is imperative this court grants an order of stay of execution pending the hearing of the appeal. The applicant pleaded that she stands to suffer substantial and irreparable harm if the order of stay of execution is not issued because if the entries in the applicant’s title are cancelled and their appeal succeeds, it will be a costly exercise to apply for new entries.

5. Further, the applicant stated that she is willing to abide to any condition and terms as to security as the court may deem fit to impose.

6. The respondents opposed the applicant’s motions through the replying affidavit sworn by Philip Kirichu on October 19, 2022. Mr Kirichu deposed that the bill of cost was taxed in the presence of both counsel for the parties and that the applicants have not demonstrated why they would not be able to refund the taxed costs in case they win the appeal. They state that cancellation of entries on the title does not amount to irreparable harm. The Respondents contended that it will be unfair for the court to issue stay orders, more than three years later as it will mean eviction and they would suffer irreparable loss as they already have tenants in the property. That should the court be inclined to grant the stay of execution, the same should be secured by a deposit of the sum of Kshs 1,297,974/- into a joint account within thirty (30) days of such order.

7. The applicant filed submissions dated November 15, 2022 in which she first outlined the background of the matter. The applicant further submitted that an order of stay of execution is normally granted to an applicant who demonstrates to the satisfaction of the court that substantial loss will ensue if the stay is not granted (sic). That the application was filed without undue delay and any delay was occasioned by the confusion that was brought about by covid19 causing the file to be filed away. She submitted that she is willing to offer such security as may be ordered for the due performance of the decree.

8. The applicant also submitted that her Appeal is arguable and unless granted a stay of execution, her appeal if successful will be rendered nugatory. She pointed this court to the cases of Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union[2012]eKLR and Kenya Industrial Estate Limited & another v Matilda Tenge Mwachia[2021]eKLR which defined an arguable appeal as that not which must necessarily succeed , but one which ought to be argued fully before the court.

9. The issues for considerations in application for stay of execution are well enumerated under order 42 of the Civil Procedure Rules; (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. In the case of Nicholas Stephen Okaka & another v Alfred Waga Wesonga [2022] eKLR the court outlined the principles of deciding the grant of a stay of execution as follows;“20. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under order 42 rule 6(2) of the Civil Procedure Rules which provides: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 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.”

10. The applicant averred that she will suffer substantial and irreparable loss if the sought entries in the decree are made and the same executed. What amounts to substantial loss was discussed in James Wangalwa &anotherv Agnes Naliaka Cheseto[2012] eKLR, that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under order 42 rule 6 of the CPR. This is so because execution is a lawful process. 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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

11. Prayer 1 and 2 of the respondent’s counterclaim sought that the applicant’s suit be dismissed and an injunction restraining the applicant, her agents, representatives, her employees or anyone claiming under her from entering upon, trespassing, disposing off, alienating, charging, taking possession or in any other manner whatsoever interfering with the suit property do not interfere with the status quo noting that the Respondents are in possession of the suit property.

12. However, prayer 3 which had sought an order directing the chief land registrar to cancel entries numbers 2 and 3 registered on March 20, 2009 against the title of the suit property and to revert the property to the estate of Ngugi Gaturo(deceased) would interfere with the status quo with the actual potential of rendering the appeal nugatory resulting to the applicant suffering substantial and irreparable loss.

13. The court, inRWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The court when granting the stay however, must balance the interests of the appellant with those of the respondent.”

14. I find and hold that the applicant has fulfilled the requirements for grant of stay of execution pending appeal as stipulated under order 42 rule 6 of the Civil Procedure Rules. Accordingly, the application dated August 16, 2022 is allowed in terms of order 3. The costs of the application abide the winner in the appeal.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9THDAY OF MARCH, 2023A. OMOLLOJUDGEIn the presence ofMs Nyabuto Advocate for applicantMs Waumbi-Njenga Advocate for the Respondent