[2022] KEELC 541 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE NO.402 OF 2010

SYMON MUITA NGATIA...............................................................................................PLAINTIFF

VERSUS

MARGARET WAKURU NYOTHO.....................................................................1ST DEFENDANT

EVA WANGA GITAU...........................................................................................2ND DEFENDANT

THE HON. ATTORNEY GENERAL..................................................................3RD DEFENDANT

MINISTRY OF LANDS, NAIROBI...................................................................4TH DEFENDANT

CHIEF LAND REGISTRAR................................................................................5TH DEFENDANT

NGUNDA FARMERS CO-OPERATIVE SOCIETYLTD IN LIQUIDATION

SUEDTHROUGHLIQUIDATOR PHILIP OLUMA.......................................6TH DEFENDANT

RULING

1. This is the notice of motion dated 6th August 2021 brought under Section 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2010, Section 5(i) of the High Court Practice (Vacation) Rules, and all other enabling provisions of the law.

2. It seeks orders:-

1. Spent

2. Spent

3. Spent.

4. That the honourable court be pleased to stay execution of the Certificate of Taxation of Costs in this matter pending the hearing and determination of the 1st and 2nd Defendants’/Applicants’ Appeal.

5. That the costs of this application be provided for.

3. The grounds are on the face of the application and are set out in paragraphs 1 to 9.

4. The application is supported by the affidavit of Margaret Wakuru Nyutho, the 1st Defendant/Applicant who also did so on behalf of the 2nd Defendant/Applicant, sworn on the 6th October 2021.

5. The 1st and 2nd Defendants/Applicants also filed a notice of motion dated 26th October 2021 seeking similar orders.

6. The Applications are opposed. There is a replying affidavit sworn by the Plaintiff/Respondent on 13th August 2021.

7. On the 9th November 2021, the court with the consent of the parties directed that the two applications be canvassed orally.

8. Counsel submitted orally on 23rd November 2021.

9. It is the Defendants/Applicants’ case that there has been a proclamation on their goods hence the need to stay the Certificate of Costs.

10. The Plaintiff/Respondent on the other hand submits that the conditions set out under order 42 rule 6 of the Civil Procedure Rules have not been met. He prays that the application be dismissed with costs.

11. I have considered the notice of motion and the affidavit in support. I have also considered the rival submissions. The issues for determination are:-

i. Whether this application is merited.

ii. Who should bear costs of this application?

12. Order 42 rule 6(2) of the Civil Procedure Rules provides that:-

“(2) No order for stay of execution shall be made under subrule (1) unless—

a. the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and

b. such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

It is clear from the above provision that the Applicant must meet specific conditions before orders of stay pending appeal can be granted.

13. In the case of of Feissal Amin Janmohammed t/a Dunvia Fowarders vs Shami Trading Co Ltd, [2014] eKLR, Kasango J stated thus:-

“It is trite law therefore that a stay of execution is generally granted if the applicant has successfully demonstrated that a substantial loss may result to him unless the order is made; that the application was made without unreasonable delay and that the applicant has offered proper security”.

14. Judgement was delivered on 5th March 2020. These applications are brought more than a year later. I find that they have been brought after a long delay. No explanation has been given.

15. The Defendants/Applicants seek stay of the Certificate of Costs pending Appeal. In its judgment this court awarded the Plaintiff mesne profits and general damages for trespass as well. These applications make no reference to these orders. I agree with Plaintiff’s counsel that nothing can stop the Plaintiff/Respondent from executing for the general damages and mesne profits.

16. The Defendants/Applicants have not demonstrated what loss they are likely to suffer if these orders are not granted. In the case of Antoine Ndiaye vs African Virtual University [2015] eKLR, Gikonyo J cited the holding in Andrew Kuria Njuguna vs Rose Kuria (Nairobi) Civil Case NO 224 of 2001 (unreported), where it was held as follows:-

“Coming to the substantial loss likely to be suffered by the applicant if the stay order is not granted, she was bound to place before the court such material and information that should lead this court to conclude that surely she stood a risk of suffering loss moneywise or other, and therefore grant the stay”.

17. I find no merit in this applicant and the same is dismissed with costs to the Plaintiff/Respondent.

It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBITHIS 24TH DAY OF MARCH, 2022

.........................

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Njeru for the Plaintiff

Mr. Bariki for Mr. Kirimi for the 1st and 2nd Defendants

No appearance for the 3rd – 5th Defendants

Steve - Court Assistant