[2022] KECA 854 (KLR)

Seyianoi & 3 others v Chairman Osilalei Group Ranch & 6 others (Civil Application E286 of 2021) [2022] KECA 854 (KLR) (28 April 2022) (Ruling)

Neutral citation: [2022] KECA 854 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E286 of 2021

AK Murgor, A Mbogholi-Msagha & KI Laibuta, JJA

April 28, 2022

Between

Mutunicet Maya Seyianoi

1st Applicant

Siteyia Ene Seyianoi

2nd Applicant

Saiyato Ene Saiyiattano Muraya

3rd Applicant

Tanaek Ene Seyianoi

4th Applicant

and

Chairman Osilalei Group Ranch

1st Respondent

Secretary Osilalei Group Ranch

2nd Respondent

Treasury Osilalei Group Ranch

3rd Respondent

Boi Ole Parkisale

4th Respondent

Lenkishirini Ole Tiong'a Nkulidi

5th Respondent

District Land Registrar Kajiado

6th Respondent

Attorney General

7th Respondent

(Being an application for stay of execution from the Judgment and Decree of the ELC at Kajiado (C. Ochieng, J.) delivered on 3rd March 2021 in ELC Case No. 476 of 2017)

Ruling

1. The applicants (Mutunicet Maya Seyianoi Siteyia Ene Seyianoi Saiyato Ene Saiyiattano Muraya and Tanaek Ene Seyianoi) are aggrieved by the judgment and decree of the Environment and Land Court (ELC)at Kajiadodelivered on 3rd March 2021 where the trial judge determined that they had failed to prove their case on a balance of probabilities and, in so finding, dismissed their suit with costs to the respondents.

2In their suit, the applicants sought orders for the 6th respondent, the District Land Registrar, Kajiado, to cancel or revoke Certificate of Titles for Land Reference No. Kajiado/Osilalei/173 and Land Reference No. Kajiado /Osilalei/179 (the suit properties) registered in the names of the 5th and 4th respondents, Boi Ole Parkisale and Lenkishirini Ole Tiong'a Nkulidi, and for the 6th respondent to visit the suit properties to ascertain the boundary between the parcel of land owned by the applicants and Osilalei Group Ranch as represented by the 1st, 2nd and 3rd respondents. Also sought was a permanent injunction against the Group Ranch to restrain it from allocating the suit properties to the 4th and 5th respondents, and an order of eviction.

3Pursuant to the judgment, the applicants have sought to file an appeal against the judgment, and have brought a Notice of Motion dated 14th July 2021 under section 3A and 3B of the Appellate Jurisdiction Act, rules 5(2) (b) of the Court of Appeal Rules, 2010 seeking a stay of execution of the judgment, pending the hearing and determination of the appeal, and that the costs of this application be provided for.

4The Motion was brought on nine grounds set out on its face, and was supported by the affidavit of Mutunicet Maya Seyianoi, the 1st applicant ,sworn on the same date, and by written submissions wherein it was contended that, at the time the hearing was concluded in 2020, the 4th and 5th respondents, who were the main trespassers, had moved out of the suit properties together with their livestock on being apprehensive of the outcome and consequences of the judgment; that following delivery of the judgment dismissing the applicants’ suit, the 4th and 5th respondents relocated back to the suit properties with all their livestock and have destroy the vegetation, and are burning charcoal.

5It was further contended that the applicants have lodged an appeal to this Court, and that unless a stay of execution is granted, the appeal will be rendered nugatory as the 4th and 5th respondents will continue to waste and alienate the applicants from the suit properties, and they will suffer substantial loss; that, the respondents will not be prejudiced by the orders sought, and that it is in the interest of justice, equity and conscience that this application be granted; that the appeal had a high chance of success.

6In a replying affidavit sworn on 28thSeptember 2021, the 4th respondent, Boi Ole Parkisale opposed the application and deponed that the Motion is an abuse of the court process and thus unmerited. The 4th and 5th respondents also filed written submissions.

7In so far as applications filed under rule 5 (2) (b) of this Court rules are concerned, the threshold requirement to be satisfied are amplified in the case of Republic vs Kenya Anticorruption Commission and 2 others[2009] eKLR thus:The court exercises unfettered discretion which must be exercised judicially. The applicant needs to satisfy the Court that first, the appeal or intended appeal is not frivolous, that is to say, that it is an arguable appeal. Second, the Court must also be persuaded that were it to dismiss the application for stay and later the appeal or intended appeal succeeds their results or success could be rendered nugatory”.

8The above notwithstanding, in the application before us, the applicants are seeking a stay of execution of what is considered to be a negative order of the ELC, in that the court merely dismissed the applicant’s suit. The applicants did not seek an order of injunction to restrain the 4th and 5th respondents from occupying the suit properties.

9In the case ofWestern College of Arts and Applied Sciences vs EP Oranga*3 others[1976] eKLR, this Court explained:…what is there to be executed under the judgement the subject of the intended appeal? The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs in Wilson v Church that high court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay.”

10Since the ELC dismissed the applicants’ suit, there is nothing to stay as a consequence of which there is nothing that demonstrates how the appeal will be rendered nugatory.

11As such, the applicants having failed to satisfy the two threshold requirements, the Notice of Motion dated 14th July 2021 is dismissed. Costs in the appeal.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF APRIL, 2022. A.K. MURGOR..........................JUDGE OF APPEALA. MBOGHOLI-MSAGHA..........................JUDGE OF APPEALDR. K.I. LAIBUTA..........................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR