[2022] KEHC 14322 (KLR)

Nyoike v Njuguna & 4 others (Civil Appeal 10 of 2020) [2022] KEHC 14322 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14322 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 10 of 2020

RB Ngetich, J

October 18, 2022

Between

Hannah Wambui Nyoike

Appellant

and

Labanson Ngigi Njuguna

1st Respondent

Zachariah Waithaka Waitara

2nd Respondent

Edward Kamande Muiruri

3rd Respondent

OCS Kabati Police Station

4th Respondent

Attorney General

5th Respondent

Ruling

1. This is a ruling on Notice of Motion application dated 30th March 2022, and filed on 31st March 2022, brought under a certificate of urgency seeking the following orders:1. Spent.2. This court be pleased to join the proposed parties as respondents to the suit.3. That in the alternative this court do enjoin the proposed parties as interested parties.4. Spent.5. Spent.6. Pending the hearing and determination of the appeal, the court does issue an injunction restraining the Respondents from harassing or in any other way interfering with the appellant’s occupation of land Title No. Loc.5/Githunguri/1456. 7.Costs be provided for.

2. The application is premised on the grounds that the proposed 2nd and 3rd respondents were parties in Thika Succession Cause No. 373 of 1999 which is the subject of the current appeal. The contention of the 2nd and 3rd Respondent is they purchased 0. 25 acres of Loc.5/Gitunguri/229 in the year 1998 from Nyoike Njuguna, the late Nyoike Njuguna passed away in 1946 and by 1998 his estate was still unadministered.

3. The acquisition of a portion of parcel no Loc.5/Githunguri/1454 subdivided from Loc.5/Githunguri/227 by the 2nd and 3rd Respondent is in breach of the Law of Succession. The current appeal challenges the trial court's decision refusal to review the mode of distribution of the estate of the late Njuguna Gathogo, the outcome of the appeal will affect the 2nd and 3rd Respondents.

4. The appellants averred that the 2nd and 3rd Respondent on several occasions harassed the appellant and obtained injunctive orders against the appellant and had the appellant committed to civil jail. The 2nd and 3rd Respondent has continued harassing the appellant to an extent of destroying her subsistence crop and burning the same this year on two occasions, the appellant has reported the matter to the 4th Respondent but failed to act.

5. That the appeal has a high chance of success as the trial court distributed the estate of the deceased to the 2nd and 3rd Respondents who are purchasers without keenly interrogating at what point they purchased the same.

6. The application is supported by the supporting affidavit of Hannah Wambui Nyoike sworn on 30th March 202 , she reiterates the averements in the grounds of the application. She further averred the alleged purchase of Loc.5/Githunguri/1454 by the 2nd and 3rd Respondent from the 1st Respondent is a forgery.

7. She averred that when she was allocated the said parcel, the 2nd and 3rd Respondent moved the court on the allegation that the appellant was interfering with their portion and stated that the appellant inherited the said portion. Further that the 2nd and 3rd Respondents sought orders from the Kandara court to have the parcel Loc. 5/Githunguri/1456 sold and the proceeds shared amongst themselves on the allegation of trespass by the appellant.

2nd and 3rd respondents replying affidavit 8. In a joint replying affidavit by the 2nd and 3rd Respondents sworn on 12th May 2022, they averred that the current appeal seeking a review of the distribution of the estate has been unattended and unprosecuted for three (3) years since it was filed. That parcel Loc.5/Githunguri /229 was subdivided into various portions known as Loc.5/Githunguri/1454 and 1456, subsequently Loc.5/Githunguri/1454 was registered in the names of the 2nd and 3rd Respondent.

9. They averred that the applicant owns Loc. 5 /Githunguri/1456 but she trespassed into Loc.5/Githunguri/1454 and interfered with the 2nd and 3rd respondent's peaceful enjoyment of the suit parcel. By the judgment issued on 8th July 2021, the court issued an injunction restraining the applicant from trespassing on Loc. 5/ Githunguri/1454 and a permanent injunction restraining the applicant from interfering with the peaceful enjoyment of the parcel.

10. They stated that despite the court order being served upon the applicant, she was in blatant breach of the said orders and as a result, the 2nd and 3rd Respondent sought the services of the 4th Respondent to effect the orders. They stated the applicant is utilizing the current status quo orders as a violation of the court orders issued.

Grounds of opposition by the 2nd and 3rd respondents. 11. The application is opposed by the 2nd and 3rd Respondents on the ground of opposition dated 12th May 2022 on the following grounds:a.That the application has no basis in law. The appeal before the court is not based on the distribution of the estate of the deceased but an appeal against the ruling of unsuccessful review.b.The grant distributing the estate of the deceased issued on 6th June 2017 has since been executed.c.There is no suit pending to warrant the granting of injunctions.d.The application before the court touches on use, occupation and title to land while this court has no jurisdiction to determine the issue.e.The time to file an appeal in Thika Succ Cause 373 of 1999 has lapsed as the judgement was delivered on 24th March 2017. f.The applicant's application seeking leave to appeal out of time was filed in Kiambu High Court Misc App. No. 54 of 2018 was dismissed on 23rd November 2018 which ruling was not appealed.g.The current application does not touch on the distribution of parcel no. Loc. 5/ Githunguri/1454. h.The applicant has no interest in Loc. 5/ Githunguri/1454.

12. The application was canvassed by way of written submissions. The applicant's submissions have not been placed in the court file.

2nd and 3rd respondents submission 13. Counsel for the 2nd and 3rd Respondent gave a brief background on Thika Succession Cause No.373 of 1999 and submitted two (2) issues for determination. The first issue is whether the applicant's ownership and occupation of land parcel no Loc.5/Githunguri/1454 is lawful; that there is an order issued in Kandara CM ELC Case No. 7B of 2020. On 9th July 2021 and 21st September 2021 restraining the applicant from acting and interfering with the plaintiff’s quiet possession of Loc. 5/Githunguri/ 1454, a decision that has not been appealed from and the current application is an abuse of the court.

14. Further that this application does not meet the threshold required as inordinate delay has not been explained; the current application having been filed on 31st March 2022 while the appeal was filed on 24th January 2020.

15. Counsel submitted the appellant failed to set down the appeal for directions and also failed to comply with Order 42 rule 6 (12) of the Civil Procedure Act, thus the court was not able to set the appeal for hearing within 21 days.

16. In conclusion, counsel for the 2nd and 3rd Respondents submitted that the appellant is not an innocent purchaser for the value of the suit property and has approached the court with the wrong provisions of the law seeking equitable reliefs and has therefore approached the court with unclean hands; and urged this court to dismiss the application.

Analysis and determination 17. I have considered the grounds of appeal, averrements herein and submissions filed by the 2nd and 3rd Respondents. The issue for determination is whether the applicant has met the threshold for grant of orders sought.

18. Order 42 rule (6) of the Civil procedure Rules, 2010 provides as follows:-“(6)Notwithstanding anything contained in sub-rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from subordinate Court or tribunal has been complied with.”

19. Further, Section 79G of the Civil Procedure Act provides for the time within which appeals from subordinate courts to the High Court can be filed as follows: -“Every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.

20. In the instant case, the judgment of the trial court seeking to be appealed was delivered on 24th March 2017; it involved the distribution of the estate of the deceased and the appellant filed for a review which was dismissed by the court. Further, the appellant filed an application to appeal out of time in Kiambu High Court Misc App. No. 54 of 2018. The same was dismissed on 23rd November 2018. The ruling was not appealed.

21. Further the appeal herein was filed on 24th January 2020 while the application herein was filed on 31st March 2022. The power of the court to grant an injunction is discretionary and is exercised judiciously; the principles for granting an injunction pending appeal are discussed in the case ofPatricia Njeri & 3 Others v National Museum of Kenya [2004] eKLR as follows: ‘’a.An order of injunction pending appeal is discretionary which will be exercised against an applicant whose appeal is frivolous.b.The discretion should be refused where it would inflict greater hardship than it would avoid.c.The applicant must show that to refuse the injunction would render the appeal nugatory.d.The court should also be guided by the principles in Giella v Cassman Brown [1973] EA 358. ”

22. In considering the case of Giella vs Cassman Brown, the court has to decide whether the appellant has a prima facie case with chances of success.

23. In the present case, the appellant contends she inherited the parcel of land known as Loc.5/Githunguri/1454 and as such the 2nd and 3rd Respondents have no locus in the suit property. Record show that the 2nd and 3rd Respondent filed a suit in Kandara CM ELC NO. 7 of 2020. By orders issued on 9th July 2021 and 21st September 2021, the appellant was restrained from interfering with the suit property.

24. The appellant failed to comply with the said orders and was committed to civil jail on several occasions. Further, the suit property was distributed on 6th June 2017 in Thika Succession Cause No. 373 of 1999 where the 1st Respondent was appointed as an administrator of the estate of Njuguna Gathogo (deceased) and the estate was distributed and transmitted to the beneficiaries as per the grant confirmed.

25. The appellant through Kiambu Misc. Application No. 54 of 2018 sought to appeal out of time the orders of distribution and the same was declined vide a court ruling on 23rd November 2018.

26. The 2nd and 3rd respondents argument is that the the appellant has no interest in the property known as Loc.5/Githunguri/1454 as the same was distributed after subdivision and the same allocated to the 2nd and 3rd Respondents.

27. From the foregoing I find that the balance of convenience tilts against the appellant.

28. The appellant was a party to the succession cause; she filed an application to appeal out of time which was dismissed by the court. Further, the appeal as filed has not been prosecuted for three (3) years now and the current application is seeking interim orders. The orders being sought in the interim would have been canvassed at the appeal level and the delay in filing the current application has not been explained by the appellants.

29. In the upshot, I find the Notice of Motion Application dated 30th March 2022 lacks merit. The same is hereby dismissed with costs to the Respondents.

Final Orders 1. Application dated 30th March 2022 is hereby dismissed.

2. Costs to the Respondents.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 18TH DAY OF OCTOBER, 2022. .................................RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantMr. Otieno for AppellantMr. Muiruri for 2nd and 3rd Respondents