[2022] KECA 431 (KLR)

Okoth & 18 others (Suing as Owners of Units in Hawi (Apartments on LR No 209/14990/4)) v Jaybinx Investments Ltd & 3 others (Civil Application E430 of 2021) [2022] KECA 431 (KLR) (Civ) (4 March 2022) (Ruling)

Neutral citation: [2022] KECA 431 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E430 of 2021

S ole Kantai, K M'Inoti & A Mbogholi-Msagha, JJA

March 4, 2022

Between

Suleiman Nyamwaya Okoth

1st Applicant

Anthony Muhia Nganga

2nd Applicant

Awlyin Jones

3rd Applicant

Catherine Oostewrwijk

4th Applicant

Mwireri Investment Company

5th Applicant

John Njora Ndiritu & Jane Wangu

6th Applicant

Njora Mohammed Hassan Abdullahi

7th Applicant

Resilient Investment Ltd Abdul Haji

8th Applicant

Janet Musya

9th Applicant

Daniel Ishmael Opande

10th Applicant

Jacob Ombongi

11th Applicant

Gladys Jepkoech Biy

12th Applicant

Vikram Indubhai Dave

13th Applicant

Mathew Gitonga Ntuara

14th Applicant

Ian Gordon Stamp

15th Applicant

Edward Mungatana

16th Applicant

Angela Dusabimana

17th Applicant

Monica Odede

18th Applicant

Rachel Odede

19th Applicant

Suing as Owners of Units in Hawi (Apartments on LR No 209/14990/4)

and

Jaybinx Investments Ltd

1st Respondent

Hawi Developers Limited

2nd Respondent

Director of Survey

3rd Respondent

Commissioner of Lands

4th Respondent

(Application for injunction pending the hearing and determination of an intended appeal against the ruling and orders of the Environment and Land Court at Nairobi (Komingoi, J.) dated 25th November 2021inELCC NO. 1151 of 2005Application for injunction pending the hearing and determination of an intended appeal against the ruling and orders of the Environment and Land Court at Nairobi (Komingoi, J.) dated 25th November 2021 in ELCC NO. 1151 of 2005)

Ruling

1. In their Motion on Notice dated 2nd December 2021, the applicants seek, under Rule 5(2) (b) of the Court of Appeal Rules, an order of injunction to restrain the 1st respondent, Jaybinx Investments Ltd, from interfering with their possession, occupation or enjoyment of the property known as LR No. 209/14990 (the suit property), pending the hearing and determination of an appeal which they have already filed against the ruling and order of the Environment and Land Court at Nairobi (Komingoi, J.) dated 25th November 2021. By that ruling, the learned judge dismissed the applicants’ application to be made parties to ELCC No. 1151 of 2005 and to set aside a consent order entered therein on 4th December 2009 between the respondents.The effect of the consent order was to create a road of access measuring 4. 5 meters through the suit property to another property, LR No. 209/12288. In turn, the effect of creation of the road of access was the demolition of the suit property’s main gate, the guard house, perimeter wall, and part of the car park.

2. The applicant’s contention was and remains that they are registered owners, by way of long-term subleases registered against the grant, of apartments erected on the suit property. They add that they were not parties to the consent judgement which adversary affects them, that they were not heard on the matter, and that they only came to learn of the existence of the consent order on 14th September 2021, some 12 years later, when the respondents demanded execution of the decree arising from the consent judgment.

3. The applicants have duly filed a notice of appeal, and indeed have filed their appeal in this Court. They contend that they have an arguable appeal because the learned judge erred by, among others, failing to find that joinder and amendment of pleadings was permissible post-judgment, failing to hold that as owners of apartments on the suit property the applicants were adversely affected by the consent judgment to which they were not parties and therefore entitled to be joined in the suit to agitate their rights, by holding that the applicants were guilty of unexplained delay in the face of uncontroverted evidence that the applicants came to know of the consent order only in September 2021 and moved to court to set it aside within ten days of getting the information, and by failing to hold that the consent judgement was null and void because it adversely affected third parties who were not afforded an opportunity to be heard.

4. Although duly served with the application, a hearing notice and a request to file written submissions, the 1st respondent did not file any and also did not attend the virtual hearing of the application on 28th December 2021. On their part, the 2nd, 3rd and 4th respondents did not oppose the application.

5. Having carefully considered the application and the applicants’ submission, we are satisfied that the applicants have demonstrated that their appeal is not frivolous. It raises issues that deserve to be considered fully by this Court, and to that extent their appeal is arguable. We are also satisfied that the appeal will be rendered nugatory, should it succeed and in the meantime the applicants’ main gate, guard house, perimeter wall, and part of the car park have been demolished or expropriated to a third party.

6. Accordingly, we allow the application and grant an order of injunction restraining the respondents from interfering with the applicants’ possession, occupation or enjoyment of the suit property on the basis of the impugned consent judgment, until the hearing and determination of the appeal. Costs of the application to abide the outcome of the appeal. It is so ordered.

DATED AT NAIROBI THIS 4THDAY OF MARCH, 2022K. M’INOTI...................................JUDGE OF APPEALS. ole KANTAI...................................JUDGE OF APPEALA. MBOGHOLI MSAGAH...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR