[2024] KECA 1423 (KLR)

Nyandiko & 9 others v Nzioka & 3 others (Civil Application E170 of 2024) [2024] KECA 1423 (KLR) (11 October 2024) (Ruling)

Neutral citation: [2024] KECA 1423 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E170 of 2024

SG Kairu, S ole Kantai & JM Mativo, JJA

October 11, 2024

Between

Pamela Nyandiko

1st Applicant

Emmma Muthoni Irungu

2nd Applicant

Alice Ayuma Muchilwa

3rd Applicant

Charles Kagiri

4th Applicant

Lucy Murugi Maina

5th Applicant

Joseph Thairu Kagure

6th Applicant

Hannah Wanjiru Kahiu

7th Applicant

John Kimaru Mumbi

8th Applicant

Daniel Gichuru

9th Applicant

Eliud Gatheru Thairu

10th Applicant

and

Jonathan Kituna Nzioka

1st Respondent

Charles Mugo Kiratu t/a Chamuki Property Agents

2nd Respondent

Julius Kalanga Makori

3rd Respondent

Chief Land Registrar

4th Respondent

(Being an Application for stay pending Appeal from the Judgment and Decree of the Environment and Land Court at Nairobi (O.A. Angote, J.) delivered on 14th March, 2024inE.L.C. CAUSE NO. 285 OF 2017 Environment & Land Case 285 of 2017 )

Ruling

1. The applicants, Pamela Nyandiko, Emmma Muthoni Irungu, Alice Ayuma Muchilwa, Charles Kagiri, Lucy Murugi Maina, Joseph Thairu Kagure, Hannah Wanjiru Kahiu, John Kimaru Mumbi, Daniel Gichuru and Eliud Gatheru Thairu were the plaintiffs in Nairobi Environment and Land Court (ELC) Cause No. 285 of 2017. They sued the respondents Jonathan Kituna Nzioka, Charles Mugo Kiratu t/a Chamuki Property Agents, Julius Kalanga Makori and Chief Land Registrar praying for various orders including: a declaration that the plaintiffs are the beneficial owners of the respective plots of land inNairobi Block 118/126 (‘the suit land’); a declaration that the 1st respondent’s transfer of the suit land to the 3rd respondent is null and void; the Certificate of Lease held by the 3rd respondent over the suit land be declared null and void and be revoked; the Certificate of Lease over the suit land issued by the 4th respondent to the 1st and 3rd respondents be revoked; that a vesting order be issued directing the 4th respondent to transfer the suit land in various names of the applicants as the rightful proprietors of the suit land; a permanent injunction be issued against the respondents severally and jointly restraining them from doing certain things including dealing with the suit land and costs be provided for.

2. The applicants’ case before ELC was that they had purchased portions of the suit land on diverse dates between 2014 and 2016 after executing sale agreements with the 2nd respondent and had paid full purchase price for the portions of land. They claimed that the 2nd respondent issued to them plot ownership certificates; that they took possession of the suit land and constructed residential houses thereon and had been in occupation for 3-4 years from the time of purchase; that they paid rent, rates and other charges to the relevant authorities.

3. The 1st and 2nd respondents denied the claim stating that they had not given the applicants permission or consent to enter or occupy the suit land. They claimed ownership of the suit land; that the 1strespondent sold the suit land to the 3rd respondent. They claimed that the 2nd respondent had conspired with the applicants to transfer the suit land to them. They filed a counter-claim asking for the applicants suit to be dismissed; that an order of eviction be issued against them as well as a permanent injunction be issued to restrain the applicants from dealing with the suit land.

4. The 2nd respondent also filed a counter-claim against the 1st and 3rd respondents where he stated that there was no fraud in his actions and that he was not involved in transferring the suit land to the 3rd respondent. He prayed that the applicants’ claim be allowed stating further that he had purchased the suit land from the 1st respondent for valuable consideration.

5. Angote, J. heard the case and in a judgment delivered on 14th March, 2024 the applicants suit and the 2nd respondent’s counter claim were dismissed; a declaration was issued to the effect that the suit land belonged to the 3rd respondent; the applicants were directed to give vacant possession of the suit land to the 3rd respondent within 30 days failure to which demolition and eviction orders to issue and costs of the 3rd respondent’s counter-claim to be met by the 2nd respondent.

6. The applicants filed a Notice of Appeal against the whole decision.

7. We are asked in the Motion on notice brought under various provisions of law, including rule 5(2)(b) the Court of Appeal Rules that pending the hearing and determination of the intended appeal an injunction be issued restraining the 3rd respondent from executing or enforcing the said judgment or orders; that an injunction be granted staying implementation and/or enforcement or orders of the said judgment pending the filing, hearing and determination of the intended appeal. We are also asked to maintain the status quo obtaining pending the filing, hearing and determination of the intended appeal. In grounds in support of the application and in a supporting affidavit of the 1st applicant Pamela Nyandiko it is said amongst other things that the applicants are apprehensive that upon lapse of 30 days the 3rd respondent would demolish their houses which had been their homes for more than 10 years; that the 3rd respondent had already threatened the applicants with eviction; that the applicants were parents of young children who attended schools in that neighbourhood; that the intended appeal is arguable with high chances of success and shall be rendered nugatory if they were evicted. The applicants say in any event that 30 days’ notice given to them by the ELC to vacate the suit land:“…is quite a short period of time considering the magnitude and import of the Orders of the Court…”that the 1st respondent sold the suit land to both the 2nd and 3rd respondents both sale agreements having been presented to ELC; that although the 1st and 3rd respondents were represented by the same lawyer the 1st respondent declined to testify or be cross- examined yet he was the principal owner of the suit land. It is deponed that the Judge of ELC ignored evidence presented by the applicants pertaining to fraud particularized in amended plaint; that it was wrong for ELC to deny an adjournment of the case when the lawyer for the applicants was unwell; at paragraphs 17-20 (inclusive) of Pamela Nyandiko’s affidavit:“17. That the learned Judge erred in both law and fact in disallowing the 2nd Defendant to appear before him and testify and produce its exhibits then later on come and fault the said Defendant for having not testified and produced the exhibits. (ref. to paragraph 56 of the Judgement).18. That the Learned Judge showed open bias where he admitted the statement of the 1st Defendant who though did not appear before the Judge, he heavily relied on his statement (ref. to paragraph 61 of the Judgement). On the other hand, the Learned Judge failed and/or refused to consider all the documents presented by the 2nd Defendant including the subdivision scheme approval, a search from Drumvale Farmers’ Cooperative Societies Limited and the receipt thereto, a copy of the transfer instrument etc and only made heavy weather of the agreement for sale.19. That the Honourable Court erred in law and fact in not considering the Plaintiffs evidence of having paid for land rates with the Nairobi City County Government but proceeded to admit the same evidence by the 3rd Defendant. (ref. to paragraph 67 of the Judgement) (Attached herein and marked PN-6 is copy of the land rates certificates filed by the Plaintiffs).20. That despite the 4th Respondent herein having entered appearance and filed its Defence, the learned Trial Judge did not consider the evidence of the 4th Respondent, Land Registrar, in arriving at his decision. Neither did he allow the said 4th Respondent to testify in Court despite Counsel for the Plaintiffs having severally pleaded with the Court to.”

8. The applicants cite the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another [2006] eKLR on the principles that apply for an application for stay of execution pending appeal stating that it is arguable whether the judge considered the evidence of Land Registrar before arriving at his decision; that it is arguable on appeal whether the applicants were prejudiced when evidence of 1st, 2nd and 4th respondents was not taken; that the applicants will argue on appeal whether it was right for the Judge to consider rates payment receipts issued to the 3rd respondent by Nairobi City County and ignore those issued to applicants. The applicants cite Caroline Awinja Ochieng & Another vs. Jane Annan Mbithe Gitau & 2 Others,[2015] eKLR for the proposition that preservation of the suit land will not cause prejudice to either party and that should the appeal fail, the 3rd respondent is at liberty to enter the suit land and take possession.

9. In a replying affidavit Julius Kalanga Makori the 3rd respondent, depones that the applicants had filed a similar application before ELC which was dismissed; he is the absolute owner of the suit land and the applicants are trespassers thereon; he is entitled to occupy his land; that there is no evidence that the suit land will be disposed to 3rd parties; that:… my numerous visits to the suit property is a demonstration that I am keen at taking over my property and enjoy the fruits of my valid and regular judgment. …”

10. He says that the 30 day notice given by the trial court was reasonable and the applicants should have left the land; that the 2nd respondent had no land to sell hence his failure to attend court to testify; that he was free to call relevant witnesses before the trial court to advance his case; that the Motion lacks merit and should be dismissed.

11. When the application came up for hearing before us on 4th June, 2024 learned counsel Mr. Ashioya was present for the applicants but there was no attendance by the respondents. We were satisfied that all parties had been served with a hearing notice through their lawyers on record on 24th May, 2024. Counsel for the applicant’s informed us further, and we saw proof that he had served the firm of M/S Ahamed, Mberere & Co. Advocates with a hearing notice for the day. There were written submissions on record filed for the 1st and 2nd respondents by M/s Bwonwonga & Co., Advocates which we have seen and considered.

12. In urging the application and in a highlight of written submissions counsel for the applicants submitted that evidence was presented to the trial court but was not considered because some witnesses were not called. According to counsel the 2nd respondent prayed to be allowed to present witnesses but the application was dismissed. Counsel argued that the applicants pleaded and proved fraud but that this was ignored by the trial court and evidence of Land Registrar was not considered. Counsel submitted that there were houses on the suit land worth millions of shillings erected by the applicants which the 3rd respondent could not compensate if they were demolished and the appeal succeeds.

13. At the conclusion of the hearing of the Motion we granted orders of status quo pending this formal ruling.

14. The principles that apply in application to this Court under rule 5 (2)(b) the Court of Appeal Rules are well known. For an applicant to succeed he must, firstly, demonstrate that the appeal, or intended appeal, as the case may be, is arguable, which is the same as saying that it is not frivolous. Such an applicant must, in addition, show that the appeal would be rendered nugatory absent stay- see the case of Stanley Kangethe Kinyanjui v Tony Ketter & Others [2013] eKLR.

15. The applicants here intend to argue on appeal that evidence of Land Registrar tendered in the case was not considered but ignored; they intend to fault the Judge for considering receipts issued by Nairobi City County to the 3rd respondent but not considering those presented by the applicants. It is intended to be argued on appeal that the Judge was wrong to bar some witnesses from testifying in the case and whether this was prejudicial to the applicants. We find these to be arguable points on appeal. As has been held by this Court, an arguable point is not one that will necessarily succeed; it is one deserving a full consideration by the court - see Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd Civil Application No. Nai 345 of 2004.

16. The applicants argue on the nugatory aspect that they have built palatial houses in the suit land which they consider their homes; they have resided there for more than 10 years; their children attend schools in the neighbourhood from which they should not be uprooted.

17. The order by the Judge is that the applicants vacate the suit land within 30 days or in default they be evicted and the homes demolished. We think that if the applicants are evicted from their homes as ordered it will cause untold hardship and suffering to them and their families. The applicants say that the 3rd respondent would not be able to pay them if the homes are demolished and they succeed in the appeal. The position in law is that once an allegation is made that a respondent is not able to pay back to an applicant the duty shifts to the respondent to show or prove ability to pay – see National Industrial Credit Bank Ltd vs. Aquinas Francis Wasike & Another (supra). The 3rd respondent has not met that condition.

18. We are on the whole satisfied that the applicants have met the principles on which an application of this nature is considered. We allow the Motion in terms of prayers 1, 2 and 3 thereof. Costs of the application will be in the appeal.

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF OCTOBER, 2024. S. GATEMBU KAIRU, FCIArb.,...........................................JUDGE OF APPEALS. ole KANTAI...........................................JUDGE OF APPEALJ. MATIVO...........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.