[2012] KECA 239 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: OMOLO, WAKI & VISRAM, JJ.A.)

CIVIL APPLICATION NO. NAI. 124 OF 2011 (UR. 83/2011)

BETWEEN

NYANGATE GUTO ALIASWATSON MOGERE MOGOKO ........................ APPLICANT

AND

MAXWELL OKEMWA MOGERE ……….…...........................…….. 1ST RESPONDENT

NATIONAL BANK OF KENYA LIMITED ........................................... 2ND RESPONDENT

(Application for injunction and stay of execution pending the determination of an intended appeal from the judgment and decree of the High Court of Kenya at Nairobi (Mbogholi Msagha, J.) dated 8th March, 2011

in

H.C.C.C. No. 2287 of 2007)

********************

RULING OF THE COURT

In his notice of motion dated the 16th May, 2011 and lodged in the Court on the 23rd May, 2011, Nyangate Guto alias Watson Mogere Mogoko, hereinafter, “the applicant”, asks the Court for two basic orders, namely that:-

“1. Pending the lodging, hearing and determination of the intended Appeal in the Court of Appeal the 1st and 2nd Respondents be restrained whether by themselves or by their agents, servants or otherwise howsoever from advertising, offering for sale, leasing, mortgaging, charging, transferring, assigning or taking possession of and/or otherwise dealing with the property L.R. NO. 209 Section III Nairobi.

2. Pending the lodging, hearing and determination of the intended appeal in the Court of Appeal, there be a stay of execution of the Decree for the payment of costs to the 1st and 2nd Respondents and the proceedings in that regard.”

The 1st respondent is Maxwell Okemwa Mogere; he is the son of the applicant. The 2nd respondent is the National Bank of Kenya Ltd.

In 1973, the applicant purchased from one, Sultanali Albin Lalji, the property known as L.R. No. 36/III/209 situated in Eastleigh, Nairobi. The purchase price at the time of sale was Shs.32,000/=. The property was subsequently registered in the applicant’s name. The applicant says he is still in possession of the property upto now and that he still pays rent and rates to the relevant authorities. The applicant swears that in 2007, he came to learn that certain fraudulent transactions had taken place over his property and among such fraudulent transactions which he discovered were:-

(a)an indenture dated 17th April, 1996 and a conveyance dated 30th December, 1995 registering the property in the name of his son, the 1st respondent;

(b)a mortgage dated the 21st September, 2004 in favour of the 2nd respondent securing the sum of Shs.7,000,000/= granted as a loan to Mosasa Construction Ltd., a company in which the 1st respondent is a shareholder and a director;

and(c) a further mortgage dated the 24th March, 2005 infavour of the 2nd respondent to secure the sum ofShs.4 million advanced by the 2nd respondent to thesame company, Mosasa Construction Ltd.

The applicant’s contention in the High Court and before this Court was that he never transferred his property to the 1st respondent and any such alleged transfer was fraudulent and, therefore, the purported mortgages were themselves unlawful. Msagha Mbogholi, J. by his judgment of 8th March, 2011 found against the applicant on these points with the learned Judge holding that:-

“………………………….. the question is whether or not the plaintiff executed the Indenture in favour of the 1st defendant in 1995. The plaintiff’s evidence cited above is of no assistance to the court neither is the evidence of P.W.4 who said she did not know when the title to the suit property disappeared and also could not tell if the plaintiff executed the Indenture. In any case, the plaintiff was supposed to prove fraud and forgery on the part of the 1st defendant. The burden and standard of proof lies entirely within the province of the plaintiff. A standard of proof approaching proof beyond any reasonable doubt is required to establish fraud. And allegations of fraud must be strictly proved. Although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required ……………………

With respect, I am unable to say that the plaintiff has proved any fraud or forgery.”

There was, in fact an indenture dated 30th December, 2005 which showed the 1st respondent as the registered owner of the disputed property and it was further agreed on the recorded evidence that the 2nd respondent had advanced two loans to the 1st respondent on the basis of the indenture showing the 1st respondent as the owner of the property. The applicant was alleging fraud and forgery on the part of the 1st respondent, but his evidence, prima facie, was very sketchy. The applicant says he has an arguable appeal. On the basis of the material on the record, we have our doubts about the arguability of the applicant’s appeal. We, of course, cannot make conclusive findings in this kind of application and all we can do is to express our doubts on that point. Since we are not quite satisfied on the point of whether the appeal is arguable, we need not consider the second aspect of whether the appeal will be rendered nugatory if we do not grant a stay. It may be the applicant continues to pay rates as he says he does, but as the trial Judge pointed out payment of rates is not synonymous with ownership of the property.

We are not satisfied that we should grant to the applicant the orders which he seeks in his notice of motion. That motion fails and we order that it be and is hereby dismissed. The costs of the motion shall be in the appeal.

Dated and delivered in Nairobi this 27th day of January, 2012.

R.S.C. OMOLO

……………………..

JUDGE OF APPEAL

P.N. WAKI

…………………….

JUDGE OF APPEAL

ALNASHIR VISRAM

……………………..

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR