[2024] KECA 1433 (KLR)

Waigi v Njuguna & another (Civil Application E598 of 2023) [2024] KECA 1433 (KLR) (11 October 2024) (Ruling)

Neutral citation: [2024] KECA 1433 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E598 of 2023

S ole Kantai, F Tuiyott & PM Gachoka, JJA

October 11, 2024

Between

Daniel Ngigi Waigi

Applicant

and

Leah Mwihaki Njuguna

1st Respondent

Margaret Wambui Waigi

2nd Respondent

(Being an application for stay of execution of the Ruling and Order of the High Court of Kenya at Kiambu (A. Mshila, J.) dated 1st December 2023 in H.C.C.A. No. 53 of 2019)

Ruling

1. There is before the High Court at Kiambu a dispute involving the estate of Samwel Waigi Miohe (Deceased) pitting Margaret Wambui Waigi (the 1st respondent) against Daniel Ngige Waigi (the applicant), John Mungai Waigi and Leah Mwihaki Njuguna.

2. In those succession proceedings, the 1st respondent has complained that the applicant has disobeyed the orders of court issued on 14th December 2022 and 6th January 2023 by encroaching into land known and described as Githunguri/Githiga/915 where he uprooted mature cash crops, destroyed trees, sunk a borehole and has fully occupied the land where he was putting up a house. The 1st respondent, in a notice of motion dated 17th February 2023, brought contempt proceedings against the applicant before the trial Court.

3. The trial Court disbelieved the main plank of the applicant’s defence which was that he was not served with the court order and in a ruling dated 1st December 2023 made the following determination and issued the following orders:-“(i)The application is found to have merit and it is hereby allowed;ii.This court finds that the 1st respondent had notice and knowledge of the court orders; and finds the continued encroachment and dealings with the suit properties to be a gross violation of the court orders; and the acts are found to be illegal, criminal in conduct and amount to contempt of the orders of 14/12/2022 and 6/1/2023;ii.The 1st respondent is hereby held to be personally liable for disobeying the court orders; and is found guilty of contempt of court orders;ii.The 1st respondent is restrained from further dealing in whatever manner with the suit properties being Githunguri/Githiga/6017- 6019/6021-6023 in a bid to purge the contempt.iii.Mention on 15. 2.2024 for mitigation before sentencing.ii.The 1st respondent shall bear the costs of the application.”

4. These orders aggrieved the applicant who filed a notice of appeal dated 19th December 2023 as an intention to appeal against the whole of the said ruling. The applicant is now before us in a notice of motion dated 19th December 2023 seeking not just stay of those orders, but also the trial court proceedings.

5. In the grounds in the body of motion and the affidavit in support sworn by the applicant on 19th December 2023, the applicant avers that his intended appeal is arguable and it shall be rendered nugatory if stay is not granted. Amplifying on the latter, the applicant contends that the respondent shall proceed to execute the ruling and order in the belief that he is purging the impugned contempt acts and that the trial Court may proceed with mitigation and impose a prison sentence which will lead to denial of his personal liberty.

6. In opposing the motion, the 1st respondent swore an affidavit on 8th April 2024. Seminal to the matters raised before us, she narrates that on 29th December 2022, the trial Court issued status quo orders and on 6th January 2023, at her request, granted injunctive orders over several parcels. She contends that notwithstanding the orders, the applicant encroached into Githunguri/Githiga/915 uprooted mature crops, destroyed and/or cut trees, and sunk a borehole. She defends the trial Court’s observation that the orders were duly served upon the applicant and he had knowledge of the terms of the orders which were clear and unambiguous. She also displays copies of several letters written and served upon the applicant urging him to obey the court orders. Further, the 1st respondent doubts the strength of the intended appeal.

7. We have considered the application and response, the submissions filed by counsel for the parties and the highlights of the respective submissions by learned Counsel Mr. Olaka representing the applicant and Mr. Lerionka holding brief for Mr. Adrian Kamotho for the 1st respondent.

8. The principles upon which this Court grants a stay under Rule 5(2)(b) are established and were restated in Stanley Kangethe Kinyanjui vs Tony Ketter & 5 others [2013] eKLR, are as follows:-“i)In dealing with Rule 5(2) (b) the court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the trial judge's discretion to this court. See Ruben & 9 Others v Nderitu & Another (1989) KLR 459. ii.The discretion of this court under Rule 5(2)(b) to grant a stay or injunction is wide and unfettered provided it is just to do so.iii.The court becomes seized of the matter only after the notice of appeal has been filed under Rule 75. Halai & Another v Thornton & Turpin (1963) Ltd. (1990) KLR 365. iv.In considering whether an appeal will be rendered nugatory the court must bear in mind that each case must depend on its own facts and peculiar circumstances. David Morton Silverstein v Atsango Chesoni, Civil Application No. Nai 189 of 2001. v.An applicant must satisfy the court on both of the twin principles.vi.On whether the appeal is arguable, it is sufficient if a single bonafide arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004. vii.An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008. viii.In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal. Damji Pragji (supra).ix.The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 at page 232. x.Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.xi.Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut by evidence the claim. International Laboratory for Research on Animal Diseases v Kinyua, [1990] KLR 403. ”

9. In reaching the decision that the applicant was guilty of contempt, the learned trial judge held:-“The photographs attached by the Applicant are indicated to have been taken between 16/12/2022 and 16/2/2023. This is after the impugned orders were issued. The 1st Respondent raised issue that the said photographs were not accompanied by a certificate of electronic evidence. This court is inclined to rely on Article 159(2)(d) of the Constitution in respect of justice being administered without undue regard to procedural technicality.”

10. The applicant argues that this holding is erroneous because the manner of production of electronic evidence is substantive and non-compliance cannot be wished away as a procedural technicality. We do not think this to be a trivial matter and in fact hold that it is serious enough to deserve an interrogation by the court that will eventually hear the appeal. That point, even if the only one, makes the intended appeal arguable and we are satisfied that the first limb for grant of a stay is satisfied.

11. Regarding the nugatory aspect, we do not entertain a doubt that it would be open for the trial Court to impose a prison sentence and thereby curtail the liberty of the applicant. The deprivation of personal liberty may not be compensable should the intended appeal prevail.

12. Yet there is an allegation that the applicant has disobeyed the orders of the court on more than one occasion, a matter we pointed out to Counsel for the applicant during the plenary hearing of the motion. While the question of whether there was actual disobedience is still up for determination in the main appeal, we must be concerned that to grant stay may be construed as approving a conduct that brings the rule of law and authority of our courts into disrepute. And it will not be the first time this Court has had to reflect on similar consideration. In Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co- ordination of National Government vs Miguna Miguna & 4 others [2018] eKLR this Court was of the opinion that:-“In deserving cases, this Court has itself set its face firmly against granting contemnors audience until and unless they first purge their contempt and it shall continue to do so in such cases as evince a headstrong contumaciousness proceeding from a bold impunity, open defiance or cynical disregard for the authority of the Court and the integrity of the judicial system. Such pernicious conduct cannot be countenanced and those hell-bent on it will find neither help, nor refuge under a convenient and self-serving appeal to natural justice when their impudent conduct threatens the very foundation of the rule of law. While the right to fair hearing is sacrosanct and is one of the non- derogable rights in Article 25 of the Constitution, we affirm with this Court in A. B. & ANOTHER vs. R.B. 2016 eKLR that there may be instances where due to the risk of the rule of law being deliberately undermined, such right may be denied and the hearing of an application for stay denied until there is full compliance with the orders of the High Court. (See also COMMUNICATIONS COMMISSION OF KENYA vs. TETRA RADIO LTD, [2013] eKLR.)”

13. We say so well aware that the applicant is not entirely hopeless in the situation and could help himself by purging the contempt. We were not told why the applicant, who would now be fully aware of the court order, has not sought to purge the contempt or in the very least obey the order.

14. Weighing one thing against the other, we have little doubt that, in the circumstances of this case, the rule of law is better served by us declining the stay. That is what we are commended to do. The application of 19th December 2023 is hereby dismissed with costs.

DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF OCTOBER, 2024. S. ole KANTAI....................JUDGE OF APPEALF. TUIYOTT....................JUDGE OF APPEALM. GACHOKA, C.Arb, FCIArb....................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR