[2021] KECA 751 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NYERI

(CORAM: KOOME, M’INOTI & MURGOR JJ.A)

CIVIL APPLICATION NO. 208 OF 2020

BETWEEN

ZEPHAN KAREITHI & CO. LTD........................................................1STAPPLICANT

TABITHA WANJIKU KAREITHI........................................................2NDAPPLICANT

AND

JACK KAGUU GITHAE...........................................................................RESPONDENT

(An application for injunction against the orders of the Environment and Land Court

at Nyeri (Waithaka, J)delivered on 18th February 2019inELC Case No. 38 of 2014

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RULING OF THE COURT

The Notice of Motion dated 14th September 2020 brought by the applicants, Zephan Kareithi & Co. LtdandTabitha Wanjiku Kareithiseek orders of injunction to restrain the respondent, Jack Kaguu Githae, his family members, agents or servants from burying or interring his wife Ann Wanjiru Githae (the deceased) on the applicants’ land known as Aguthi/Gatitu 667/101 (the subject land)on Tuesday 15th September 2020 or any other day, pending the hearing and determination of an intended appeal against the judgment (Waithaka, J.)delivered on 18th February 2019. Further orders were sought to restrain the respondent from cutting down eucalyptus trees or causing any other damage to the subject land or committing any other acts of wastage or carrying out any other unlawful activities pending the hearing and determination of the appeal, and for the Officer Commanding Station, Nyeri Central Police Station to should provide security and ensure compliance. The application was supported by the sworn affidavit of the 2nd applicant, Tabitha Wanjiku Kareithi.A copy of an obituary indicating the date of the burial as 15th September 2020 was attached.

The respondent did not file a replying affidavit or written submissions as directed by the court in a hearing notice which was duly served electronically. The background to the application is that the respondent entered into a sale agreement with the 1st applicant for the purchase of the subject land for Kshs. 650,000. After payment of the purchase price, the respondent took over possession of the subject land and proceeded to build and develop the same. The respondent’s claim is that in breach of the sale agreement, the applicants refused to transfer the subject land to him, and in the alternative, the respondent acquired the subject land through the doctrine of adverse possession. The respondent therefore prayed that the court orders the transfer of the subject land to him in terms of the sale agreement.

The applicants denied the respondent’s claims and also filed a counterclaim. In determining the dispute, the trial court found that the respondent had proved that he had acquired the subject land through the doctrine of adverse possession which formed an overriding interest against the applicants’ title.

The applicants were aggrieved, and filed an appeal, No. 208 of 2019 which is pending for hearing. In the motion before us, the applicants seek to stop a burial on the suit land which was scheduled for a specific date, namely Tuesday, 15th September 2020, which is now long past. The applicants were obliged to file an affidavit to update the Court on the current status of the application when they were served with a hearing notice on 25th February 2021.

In the absence of any evidence to show that the burial did not take place as scheduled, this application is academic and overtaken by events. The Court will not issue orders on the basis of speculation or guesswork. This application has no merit and is hereby dismissed. Costs in the appeal.

It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2021.

M.K. KOOME

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JUDGE OF APPEAL

K. M’INOTI

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JUDGE OF APPEAL

A. K. MURGOR

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR