[2024] KECA 1409 (KLR)

Shah & another v Chelogoi & 3 others (Civil Application E207 of 2024) [2024] KECA 1409 (KLR) (11 October 2024) (Ruling)

Neutral citation: [2024] KECA 1409 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E207 of 2024

SG Kairu, AO Muchelule & WK Korir, JJA

October 11, 2024

Between

Ashok Rupshi Shah

1st Applicant

Hitenkumar Amritlal Raja

2nd Applicant

and

Davis Nathan Chelogoi

1st Respondent

Commissioner Of Lands

2nd Respondent

Registrar Of Titles

3rd Respondent

Mirriam Wairimu Wambugu (Sued as administratrix of the Estate of Tte Late Jacob Juma)

4th Respondent

(An application for stay of execution of the status quo and other orders and further seeking injunction orders against the 1st respondent and any further proceedings from the Ruling of the Environment and Land Court of Kenya at Nairobi (Omange, J.) dated 22nd April, 2024 in ELC Cause No. E070 of 2023 Environment and Land Case Civil Suit 114 of 2013 )

Ruling

1. In their application dated 6th May 2024, the applicants, Ashok Rupshi Shah and Hitenkumar Amritlal Raja, seek orders of stay of execution of a ruling and orders made by the Environment and Land Court (ELC) on 22nd April 2024 in ELC Case No. E070 of 2023 pending the hearing and determination of their appeal. They also seek an order of stay of proceedings in that suit as well as an order of injunction to restrain the 1st respondent, Davis Nathan Chelogoi, by himself or through his servants or agents, from dealing with, disposing off or interfering with the lands office records of the applicants’ ownership of the suit property known as LR. No. 18485 I.R. No. 64011 including titles arising following the conversion into Nairobi/Block No’s 80/44-72.

2. Based on the numerous grounds in support of the application appearing on the face of the application; the affidavit of Ashok Rupshi Shah; and the written and oral submissions canvassed before us by learned counsel Mr. Mwangi and Mr. Moriasi during the hearing of the application on 16th September 2024, the essence of the applicants’ case is that they were declared to be the legal owners of the suit property in a judgment delivered by the ELC (L. Komingoi, J) on 28th July 2022 in ELC 312 of 2009 following a full- fledged trial; that the 1st respondent had unsuccessfully applied to arrest the judgment in that suit prior to its delivery; that after that judgment was delivered, the 1st respondent applied to set it aside and to be enjoined in the suit which application was dismissed by the ELC (J. Omange, J) in a ruling delivered on 20th July 2023; that undeterred, the 1st respondent filed a new suit, being ELC No. E070 of 2023, seeking to be declared the legal owner of the suit property on the strength of a title issued in his favour during the pendency of ELC 312 of 2009 and when there were orders subsisting in that suit for status quo to be maintained.

3. The applicants then assert that the 1st respondent made an application in ELC No. E070 of 2023 seeking injunctive orders to restrain the applicants from interfering with his possession of the property; that the applicants on the other hand, applied for a mandatory injunction for possession of the property; that those applications alongside a third application were disposed of a ruling delivered on 22nd April 2024, the subject of the intended appeal, by which the learned Judge (J. Omange, J) ordered:(a)"The status quo maintaining as that 22nd April 2024 be maintained. For clarity the status quo is defined as follows;i.the plaintiff is to remain in occupation of the suit property pending the hearing and determination of the suit.ii.The plaintiff is not to carry out any logging, or construction, let out or cause any destruction on the suit property.iii.The 3rd and 4th defendants should not make any changes to the land records and documents relating to LR Number 18485 IR 64011 or LR Number 18485 IR 232908 Lower Kabete Nairobi.b.the matter be listed for case management sothat a case management timetable can be agreed upon which all parties shall be required to strictly adhere to.c.…”

4. Aggrieved, the applicant’s lodged a Notice of Appeal dated 2nd May 2024 on which the present application is hinged.

5. It is the applicants’ case that the application meets the threshold for the exercise of the Court’s discretion in their favour under Rule 5(2)(b) of the Court of Appeal Rules. They contend the intended appeal is arguable and that if the orders sought are not granted, and the appeal succeeds, the same will be rendered nugatory.

6. Learned counsel Mr. Allan Kamau for the 2nd and 3rd respondent in his oral submissions (his written submissions having been expunged on application by counsel for the 1st respondent), fully associated himself with counsel for the applicants in supporting the application.

7. In opposition to the application, the 1st respondent through his replying affidavit and through written and oral submissions canvassed before us by learned counsel Mr. Orioki assisted by Mr. Asa, it is asserted that the intended appeal is not arguable and neither will it be rendered nugatory should the application be declined. It is urged for the 1st respondent that he is the registered proprietor of the property; that the intended appeal is not arguable because the learned Judge in the impugned ruling was cognizant and acknowledged that the 1st respondent is in possession of the property and has been in occupation for over 28 years; that the 1st respondent was not a party in ELC 312 of 2009; that on 20th July 2023, the 1st respondent was allowed to be enjoined as an interested party in ELC 312 of 2019 for purposes of participating in post judgment applications; and that he is intent in demonstrating, within ELC No. E070 of 2023, that he is the lawfully registered proprietor of the suit property and should have an opportunity to do so.

8. There was no appearance for the 4th respondent during the hearing of the application despite Notice of Hearing having been duly served.

9. We have considered the application, the affidavits and the submissions against the principles applicable to applications of this nature under Rule 5(2)(b) of the Court of Appeal Rules. As regards whether the applicants have demonstrated that the intended appeal is arguable, counsel for the applicants who, as already indicated, was supported by counsel for the 2nd and 3rd respondents submitted that there is a judgment in rem delivered in ELC 312 of 2009 which conclusively determined the ownership of the suit property and declared the applicants to be the legal owners thereof; that the effect of the impugned ruling is to overturn that judgment in ELC 312 of 2009 and to hand over possession of the property to the 1st respondent; that it will be demonstrated during the hearing of the appeal that the learned Judge had no jurisdiction to interfere with the judgment in ELC 312 of 2009, a judgment of a court of coordinate jurisdiction. Although counsel for the 1st respondent forcefully submitted that the intended appeal is not arguable, we are satisfied that the intended appeal is not frivolous. It is arguable. It is established that an arguable ground is not one that must necessarily succeed. See for instance Kenya Commercial Bank Limited vs. Nicholas Ombija [2009] eKLR.

10. On the nugatory aspect, it is common ground that judgment was indeed delivered in ELC 312 of 2019 adjudicating the ownership of the property and an appeal from that judgment, being Civil Appeal No. E306 of 2023 is pending hearing and determination before this Court. It was urged that to subject the applicants to the rigors of another trial over a matter that has already been heard and determined is prejudicial to the applicants and renders the proceedings in ELC 312 of 2019 a farce; and that the effect of the impugned orders is to freeze the applicants’ title to the property. The 1st respondent on the other hand submitted that if the orders sought are granted, he will suffer immensely and irredeemably as ELC E070 of 2023 will thereby prematurely be determined.

11. On our part, we take the view, that in the absence of an order of stay of proceedings, the ELC would proceed to hear the 1st respondent’s suit in E070 of 2023, and may issue orders that will unduly complicate, not only the intended appeal, but also Civil Appeal No. E306 of 2023 arising from the judgment in ELC 312 of 2019. We echo the words of the Court in Sustainet Group Limited vs. Wanguhu (Civil Application E220 of 2022) [2024] KECA 1106 (KLR) where in somewhat similar circumstances the Court expressed as follows:“As regards the nugatory aspect, it was evident that absent an order of stay of proceedings, the ELRC would proceed to hear the respondent’s suit and may issue orders that would unnecessarily complicate the appeal. Although this Court on appeal could set aside any judgment of the ELRC in this regard, it was important, in our view, and in the interest of expediency, to grant the order of stay of proceedings, as this would save judicial time and also save the parties unnecessary expense…”

12. In the result, we allow the applicants’ application dated 6th May 2024 to the extent that we order that pending the hearing and determination of the applicant’s appeal:a.The ruling and orders of the ELC granted on 22nd April 2024 in ELC No. E070 of 2023 is hereby stayed.b.Further proceedings in ELC No. E070 of 2023 are hereby stayed.c.The 1st respondent, whether by himself, his servants or agents or otherwise howsoever, is hereby restrained by an order of injunction from dealing with or interfering with the lands office records of the applicants’ ownership of the suit property.

13. Costs of the application shall abide the outcome of the appeal.

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF OCTOBER, 2024. S. GATEMBU KAIRU, FCIArb....................................JUDGE OF APPEALA. O. MUCHELULE....................................JUDGE OF APPEALW. KORIR....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR