[2021] KEELC 4588 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MAKUENI

ELC MISC. JUDICIAL REVIEW APPL. NO. 5 OF 2018

REPUBLIC..............................................................................................................................APPLICANT

-VERSUS-

THE CHAIRMAN LAND DISPUTES TRIBUNAL AT EMBU...1ST RESPONDENT

THE ATTOERNEY GENERAL......................................................2ND RESPONDENT

-AND-

MATHUVA MUKEMBA..................................INTERESTED PARTY/APPLICANT

-AND-

MBAIKA KAVITI KYUNGUTI ALIAS MBAIKA KAVITI NYANGE

(SUING AS THE LEGAL REPRESENTATIVE OF

KYUNGUTI MUUKI........................... EX-PARTE APPLICANT/RESPONDENT

RULING

1. The application for determination is dated 2nd October 2020 and was filed by the Interested Party under certificate of urgency on even date. It is brought under Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the Law.

2. The Applicant seeks the following Orders:

a. Spent.

b. Spent.

c. That this Honourable Court be pleased to stay execution of its judgment delivered on 18. 06. 2020 and all consequential orders emanating therein pending the hearing and determination of the Appeal.

d. That the costs of this application be in the cause.

3. The application is supported by the affidavits of Mathuva Mukemba sworn on the same day and the supplementary affidavit sworn on 4th November, 2020. The basis of the application is that judgment was entered in favour of the Ex-parte applicant/Respondent on 18th June, 2020 and that the upshot of it is that the Applicant is now facing the prospect of imminent eviction from the suit property known as Land Parcel No. Nzaui/Nziu/592. The Applicant also contends that he has filed an appeal against the Judgment at the Court of Appeal and that the appeal will be rendered nugatory if the orders sought are not granted.

4. The application is opposed by Mbaika Kaviti Kyunguti vide her replying affidavit sworn on 13th October, 2020. She avers that the application has been made following an unreasonable delay which has not been explained by the Applicant. The Respondent also contends that the Applicant has not demonstrated that he will suffer substantial and irreparable loss should the stay of execution of the judgment herein not be granted. The Respondent further argues that application is devoid of merit, an abuse of the court process and prays that the same be dismissed with costs.

5. The application was canvassed by way of written submissions.

6. It is common ground from the parties’ submissions that the prerequisite conditions for a grant of the orders sought herein are well spelt out under Order 42 Rule 6(2) of the Civil Procedure Rules (2010). These are: -

i. That substantial loss may result to the Applicant unless the order is made;

ii. That the application has been made without unreasonable delay;

iii. That security has been given by the Applicant for the due performance of the decree as may ultimately be binding on him.

7. On substantial loss, the Applicant’s contention is that the Respondent will proceed to evict him from the suit property, which is the only home known to him, before the appeal has been heard and determined thereby rendering the appeal nugatory in addition to causing him irreparable loss. The Applicant is also apprehensive that if the Respondent proceeds to execute the taxed costs of the suit being Kshs. 331,972/=, the Respondent will be unable to refund the same should the appeal succeed.

8. In her replying affidavit, the Respondent asserts that the Applicant has not demonstrated any irreparable loss that he stands to suffer. However not once in the replying affidavit has it been averred that the Applicant has not settled on the suit property. Rather, it is at paragraphs 11 and 12 of the Respondent’s submissions where the Respondent has attempted to dismiss the Applicant’s contentions of substantial loss along the lines that the Applicant only cultivates the land as opposed to being settled on the land. She submits that the Applicant stopping of cultivation on the suit property can be quantified and paid in damages.

9. On the aspect of delay, it is noted that judgment herein was delivered on 18th June 2020. The Applicant then filed his Notice of Appeal on 24th June 2020. Afterwards, on 24th July 2020 the Respondent filed a party and party bill of costs and subsequent ruling delivered on 30th September, 2020 by the Taxing Master. An eviction notice was served on the Applicant on 21st July, 2020 and a demand notice for the taxed costs was served on 1st October, 2020. The application herein was then filed on 2nd October, 2020.

10. On security, the Applicant has expressed his willingness to provide the same under paragraph 14 of the supplementary affidavit. At paragraph 15 of her replying affidavit, the Respondent prays that the Applicant be directed to deposit the taxed costs into a joint interest earning account in the name of the advocates on record, in the event that this Court is minded to allow this application.

11. On whether the Applicant has satisfied the requirements of Order 42 Rule 6 (2) of the Civil Procedure Rules 2010, this Court’s discretion is guided by the Court of Appeal decision in Butt –Vs- Rent Restriction Tribunal [1982] KLR 417 where it was held as follows:

“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.

3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.

4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

12. In my view, the Applicant has demonstrated that he is in possession of the suit property and that he is making use of the same be it for permanent residence or cultivation purposes. Execution of the judgment will undoubtedly cause him substantial loss and strife.

13. Secondly, the delay in filing the present application is three and half months or thereabouts since the date when judgment was delivered. The threat of execution became apparent to the Applicant upon final service of the demand notice on 1st October, 2020 following which this application was filed on the next day. I find that the delay in the filing of this application was not unreasonable.

14. Lastly, both litigants herein have expressed their willingness to abide by such order for security as this Court will order.

15. Given the above circumstances and being mindful of the two competing interests i.e. the Applicant’s right of appeal and the Respondent’s right to enjoy the fruits of her judgment, I will proceed to grant Prayer iii) of the application on condition that the Applicant shall deposit Kshs. 331,972/= being the taxed costs into a joint interest earning account to be opened in the names of the Advocates on record within forty five (45) days from the date hereof. In default, the Respondent may proceed to execute the judgment. Costs of the application shall be in the cause.

Signed, dated and delivered at Makueni via email this 29th day of January, 2021.

…………………………………….

MBOGO C.G.

JUDGE

Court Assistant: Mr. Kwemboi