Andrew Isoe Ochoki v Thomas Ratemo Oira [2014] KEELC 2 (KLR)

REPUBLIC OF KENYA

INTHEHIGH COURT OF KENYA

AT NAKURU

ENVIRONMENT AND LAND DIVISION

CIVIL SUIT NO. 222 OF 2013

DR. ANDREW ISOE OCHOKI.................................PLAINTIFF/RESPONDNET

VERSUS

THOMAS RATEMO OIRA.......................................DEFENDANT/ APPLICANT

RULING

1.  The parties herein entered into a contract of sale of L.R No.  Nakuru/Miti Mingi/ 38 for sum of ksh1,500,000/-. The plaintiff was the seller. He  states to  have signed all  the requisite documents for  transfer to  the defendant,  upon receiving 2  cheques written in  his  names by  the  defendant. The   property was there after registered in the defendant's name.

2. However the cheques issue by the defendant were dishonored after the registration had sailed through. On 24th January, 2014   the   plaintiff obtained orders of injunction restraining the defendant from having any dealings over the suit property, pending the   hearing and determination of the  suit.

3. The defendant being dissatisfied with those orders filed an application dated the 28th February, 2014 under certificate of urgency seeking the following orders;

i) ……

ii) THAT this honourable court be pleased to Grant an interim stay of execution of the ruling delivered on the 24th January 2014 pending the hearing and determination of this application.

iii) THAT this honourable court be pleased to grant a stay of execution of the ruling delivered on the 24th January 2014 pending the hearing and determination of the intended civil appeal in the court of appeal.

iv) THAT costs of this application be provided for.

4.  The  application is premised on  the   grounds on  the  face thereof and is supported  by  the   affidavit by  the defendant dated 28TH  February, 2014. He  depones that  he  filed  his notice   of  appeal on  29th January, 2014 challenging that ruling  on  grounds that the  plaintiff  who  obtained the  stay orders from this  court intends to dispose off the  suit property and  has  already assembled buyers who  have  visited the  land severally with a view of purchasing the  suit property.

5.  He  further depones that he  has yet  to  file  the  record of appeal as the  typed  proceedings are  yet  to be availed to him; that if the  orders sought are  not  granted, the  appeal shall be rendered nugatory and  he  shall suffer  irreparable harm, as the  suit property is  still  registered in  his  name, especially if the  plaintiff  continues with  the  dealings therein.

6.  The  plaintiff  filed  a  replying affidavit   dated  21st  March, 2014 denying having brought strangers in  the suit property. It was  his  contention that the  strangers talked about are  his workers who  were  assisting in  planting during the  planting season. He states that being   a medical doctor, he  cannot work  on the  suit property otherwise than by employees. He adds that the application was baseless as the suit property was still registered in the name of the defendant and the main suit was still pending for  determination. He  urged the court to dismiss the  application.

7.  Directions were taken  on17th  July,  2014 that  the application be disposed  of  by   way of  written submissions. The  defendant (applicant) filed  his  submissions on  30th July, 2014while  the  plaintiff filed  his  on  7th August, 2014.

8. In  his  submissions, the  applicant stated that the  court in making it's ruling, had failed   to  consider that there was a contract of  willing buyer, willing   seller as admitted by  the plaintiff in his  affidavit; that the  plaintiff had handed over  his entire file including   the transfers  which  enabled  the registration  to be effected  in the name  of  the defendant. Further the court had also failed to consider that the suit property was in the process of being repossessed by the Government if the defendant ignored to pay  the Government's outstanding   loan  in respect of the suit property.  In addition  he  submitted that  he  was  ready  to deposit  a security of 1,500,000/-  in court  pending  the hearing  and  determination  of  the   appeal  already  filed   in Nakuru.

9. He further submitted that the plaintiff having transferred the entire land and documents in respect thereof, should not be allowed by the court to take possession of the suit property or even visit, as this would  result in  miscarriage of justice. Finally he submitted that the plaintiff ought to have demanded to be paid the purchase price before demanding back his property.

10.  In reply, the plaintiff relied on Order 42 Rule 6(2) of the Civil Procedure  Rules,  2010. He   submitted that   the defendant had   not met   the conditions for grant of stay of execution namely;  he had   failed to demonstrate the possibility of substantial loss and   payment of security to be ordered by the court. He denied that the defendant was likely to   suffer any loss as he   was   in   possession of the title documents, thus making it impossible for the plaintiff to sell the suit property to  any  other person. In  addition he  stated that though he  was  seeking the  cancellation of the  title documents, that was an issue to  be  determined after a full trial.

11. On the  issue of security, the plaintiff submitted that the defendant had not deponed in evidence his willingness  to avail  security; that this ought to have  been done in  affidavit on  oath and not  in  his  submissions. He however emphasized that his claim was not for the   purchase price which would give the defendant basis for offering security hence the issue of security was  misplaced.

12.  He further submitted that probability of success of the appeal was an issue for the court of appeal to decide as this court had done its part. He relied on the cases of Socfinal Company Limited Vs Nelphat Kimotho Muturi(2013) eKLR.

13. I have considered the pleadings, submissions and authorities filed as well as the rival arguments of the parties herein.

14. Grant of orders of stay pending appeal has extensively been addressed by the courts.  The  applicant  needs   to demonstrate that  he   has  fulfilled the  following conditions discussed in  the  case of  Attorney General of  The Republic Of  Uganda V East African Law  Society &  Another [2013] eKLR. They were listed as;-

a)That substantial loss may result to the Applicant unless the order of stay is made;

b)  That the application has been made without unreasonable delay; and

c)  That security for costs has been given by the Applicant.

15. The court has also held   that the   same conditions that the High Court considers, are   the   same that the   court of appeal considers when a similar application is filed  before that  court.  This was stated in   the   case of   Equity Bank Limited V West Link Mbo Limited[2013] eKLR;-  when the court stated,

"Rule 5(2) (b) is the counterpart of Rule 6(1) of Order 42 Civil Procedure Rules".

16. On  the  first condition of substantial loss, the court held in the  case ofJames Wangalwa  & Another V Agnes Naliaka Cheseto[2012]  eKLR   that,  the    fact    that   the  process  of execution had been put in  motion, or  was likely to  be put in motion, by  itself, did  not  amount to  substantial  loss. Even when execution had been levied  and completed, that was  to say,  the  attached properties have  been sold, did  not  in  itself amount to  substantial loss under Order  42 Rule  6of  the Civil  Procedure Rules. This was so   because execution is a lawful process.

17.  Therefore it  was the   duty of  the   applicant to  establish other factors which demonstrated that  the  execution would create a  state  of  affairs that  would  irreparably  affect  or negate  the    very essential  core of   the applicant as  the successful party in  the  appeal. In the case ofSilverstein N. Chesoni[2002] 1KLR 867,  the  court held  that “ ... the  issue of  substantial  loss is  the   cornerstone  of  both jurisdictions. Substantial loss is what   has   to be prevented by preserving the   status quo because such loss would render the appeal nugatory.”

18.  In applying   the above conditions to the   current application, I am not convinced that there is any likelihood of loss occurring on the part of the defendant. I say so because the defendant has already transferred the suit property in his name and is in possession of the title   documents. This bars  the plaintiff  from transferring  the suit  property  to himself or another party as long  as the  title  is  not  canceled and re-transferred  back to the plaintiff. The plaintiff has also explained about the   presence of the persons on the suit property and this  is unlikely to affect the intended appeal herein.

19.  On the condition that the application should be filed without unreasonable delay, the defendant has fulfilled this condition as he filed   his   application one month after the ruling was delivered.

20.  On the  condition of security, as submitted by counsel for the   plaintiff, the   court  in the case of  James Wangalwa (supra)  held   that the  applicant has to  show  willingness to pay  security, but  it also  clarified  that the  security was  to  be determined  and set by   the court  as  a condition.  The defendant is only needed to plead willingness to abide by the conditions of the court.

21.  In a nutshell, I find the application dated 28th February, 2014 without merit and dismiss it with costs.

Dated, signed and delivered at Nakuru this 10th day of December 2014

L NWAITHAKA

JUDGE

PRESENT

N/A for plaintiff

N /A for the   defendant

Emmanuel Juma: Court Assistant

L NWAITHAKA

JUDGE