[2023] KEELC 21383 (KLR)

Shiramba & 27 others v County Government of Uasin Gishu & 3 others (Environment & Land Petition 14 of 2018) [2023] KEELC 21383 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21383 (KLR)

Republic of Kenya

In the Environment and Land Court at Eldoret

Environment & Land Petition 14 of 2018

EO Obaga, J

November 9, 2023

IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTCILES 10,20, 22, 27, 40, 46, 59, 67 AND 70 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE LANDS ACT, 2012 AND IN THE MATTER OF UNLAWFUL ACQUISITION OF PRIVATE LAND AT KAPSOYA ESTATE - ELDORET

Between

Florence Chimoli Shiramba

1st Petitioner

Jackson Kipruto Ngetich

2nd Petitioner

Robert W. Ombayo

3rd Petitioner

Rahma Chepkorir

4th Petitioner

Joseph Ndungu Kanyoko

5th Petitioner

Kiprotich Amdany

6th Petitioner

Beatrice M. Gachube

7th Petitioner

Julius K. Kolil

8th Petitioner

Benson Milimu

9th Petitioner

Charles Kibuthu

10th Petitioner

Esther Mwihaki Mwangi

11th Petitioner

Beatrice J. Sawe

12th Petitioner

Musa Kipchumba Kiyai

13th Petitioner

Eunice Chepkorir Lesan

14th Petitioner

Joseph Tallam

15th Petitioner

Lukas K. Cheptoo

16th Petitioner

Boniface K. Ndungu

17th Petitioner

Mary Njeri

18th Petitioner

David Kanyeria

19th Petitioner

Peterson Mwangi

20th Petitioner

Esther Mwangi

21st Petitioner

Barnabas K. Kibos

22nd Petitioner

Paul Njoroge

23rd Petitioner

Grace Wanjiru

24th Petitioner

Wambugu Irumbi

25th Petitioner

Washington M. Kariuki

26th Petitioner

Francis Tarar

27th Petitioner

Paul Koech Kipsum

28th Petitioner

and

County Government of Uasin Gishu

1st Respondent

National Land Commission

2nd Respondent

Chief Land Registrar, Uasin Gishu County

3rd Respondent

Attorney General

4th Respondent

Ruling

1. This is a ruling of a notice of motion dated 12. 6.2023 in which the 1st Respondent/Applicant seeks stay of execution pending appeal. The Applicant contends that it has appealed against the judgment of this court which was delivered on 19. 4.2023.

2. The Applicant argues that if the stay is not granted, it will suffer substantial loss and the appeal will be rendered nugatory. The Applicant’s fear is that if execution is carried out and the appeal succeeds, the Petitioners/Applicant will not be able to refund the decretal sum as their source of income or even whereabouts is not known.

3. The Respondents opposed the Applicant’s application based on grounds of opposition dated 12. 7.2023. The Respondents contend that the Applicant’s application is misconceived, untenable in law, devoid of merit and amounts to an abuse of the process of the court. They also argue that the applicant has failed to meet the threshold under order 42 rule 6 of the Civil Procedure Rules.

4. The Respondents also contend that stay of execution cannot be granted in a monetary decree and that a successful litigant should be let to enjoy the fruits of his judgment. They also state that in the event the court is inclined to grant stay, it should be on condition that half of the decretal sum be released to the Respondents and the other half be deposited in a joint interest earning account in the name of the Advocates for the parties.

5. The application was canvassed by way of written submissions. The Applicant filed submissions on 26/9/2023. The Respondent’s filed their submissions on 22/9/2023. I have considered the Applicant’s application as well as the opposition to the same by the Respondents. I have also considered the submissions filed by the parties. The only issues for determination are whether the Applicants has met the threshold for grant of stay of execution pending appeal. The other issue is on which order should be made on costs.

6. There are conditions which felter the discretion of this court when it comes to an application for stay pending appeal. The application has to be brought without unreasonable delay. The Applicant has to demonstrate that if stay is not granted, the appeal will be rendered nugatory. There has to be security for costs as may ultimately be binding upon the Applicant on the decree.

7. In the instant case, judgment was delivered on 19. 4.2023. There was a stay of execution granted for 30 days on delivery of judgment. This application was filed on 12. 6.2023. The application was filed slightly below one month after the expiry of the initial 30 days stay which had been granted. I therefore find that the application was brought without unreasonable delay.

8. On whether the Applicant will suffer substantial loss, I notice that the 15 successful Respondents were given a total of Kshs 30,000,000/= in compensation. I also note that they were ejected from their plots. Their whereabouts or source of income is not known. If the decretal sum was to be released to them, it will be difficult to trace them for refund incase the appeal succeeds.

9. In the case of National Industrial Credit Bank Ltd v Aguinas Francis Wasike & another (2006) eKLR, the Court of Appeal stated as follows:-“This court has said before and it would bear repeating that while the legal duty is on an Applicant to prove the allegation that an appeal would be render nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge – see for example section 112 of the Evidence Act, Chapter 80 Laws of Kenya.The 1st Respondent swore the replying affidavit in this matter and in paragraph 1 thereof, he swore that he is the Chief Executive Officer of and the Principal shareholder in the second Respondent. He did not disclose the value of his share-holding in the 2nd Respondent; nor did he say if he earns a salary and if so how much. In paragraph 11 of the replying affidavit, the 1st Respondent set out the contracts in which the 2nd Respondent was engaged in but the values of those contracts were not disclosed. We repeat that the decretal sum was awarded to the 1st Respondent, not the 2nd Respondent and all that the 2nd respondent is entitled to from the judgement are the costs of the Applicant’s dismissed suit. The sum awarded to the 1st Respondent was on a counter-claim. On the material before us, the means or resources of the 1st Respondent remain wholly unknown and in those circumstances, we agree with Mr. Laibuta that if the decretal sum was paid over to the 1st or even to the 2nd Respondents, the two might not be able to repay it back and in that case, if the Applicant’s intended appeal were to succeed, that success would be rendered nugatory.”

10. The Applicant has expressed genuine fear that if the decretal sum is paid to the Respondents, it will be difficult to get a refund. The moment this fear was expressed, it was incumbent upon the Respondents to demonstrate that they are capable of refunding the decretal sum if the appeal succeeds. They did not do this. I therefore find that the Applicant is likely to suffer substantial loss if stay is not granted.

11. I therefore grant stay of execution on condition that the Applicant deposits a sum of Kshs 2,000,000/= as security for costs in court within 14 days failing which the stay orders shall lapse. The costs of this application shall abide the outcome of the appeal.It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 9TH DAY OF NOVEMBER, 2023. E. O. OBAGAJUDGEIn the virtual presence of;M/s Kirimi for Mr. Mwangi fro 1st Respondent.Court Assistant –LabanE. O. OBAGAJUDGE9th NOVEMBER, 2023