Francis Mburu Kamau v Methi & Swani Farmers Cooperative Society, Peter Ngugi Mungai, Elijah Kimanu Kimuyu, Peter Ndegwa Macharia, Stanley Thuo & Attorney General [2021] KEELC 4551 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT MURANG’A

ELC NO.421 OF 2017

FRANCIS MBURU KAMAU.......................................................PLAINTIFF/APPLICANT

VERSUS

METHI & SWANI FARMERS

COOPERATIVE SOCIETY.............................................1ST DEFENDANT/RESPONDENT

PETER NGUGI MUNGAI...............................................2ND DEFENDANT/RESPONDENT

ELIJAH KIMANU KIMUYU..........................................3RD DEFENDANT/RESPONDENT

PETER NDEGWA MACHARIA......................................4TH DEFENDANT/RESPONDENT

STANLEY THUO............................................................5TH DEFENDANT/RESPONDENT

HON ATTORNEY GENERAL........................................6TH DEFENDANT/RESPONDENT

RULING

1. By way of a plaint filed and amended on the 17/10/14, the Plaintiff sued the Defendants for orders as follows;

a. Permanent injunction restraining the Defendants by themselves agents’ invitees and or servants from entering trespassing alienating and or selling the property known as MITUMBIRI/WEMPA/BLOCK2/2411.

b. An order cancelling title No MITUMBIRI/WEMPA/BLOCK2/2411 registered in favour of Hope Self Help Group.

c. A mandatory injunction compelling the 1st, 2nd and 6th Defendants to register the title in favour of the Plaintiff.

d. An eviction order against the 3rd, 4th & 5th Defendants

e. General damages for trespass and fraudulent misrepresentation

f. Costs of the suit

2. On the 30/4/19 the Court pronounced judgement in favour of the Plaintiff and granted the prayers as prayed above. The Defendants were condemned to pay Kshs 100,000/- being general damages for trespass.

3. On the 3/10/19 the 3rd -5th Defendants by way of a Notice of Motion sought stay of execution of the judgment above pending the hearing and determination of their Appeal.

4. On the 16/1/2020 the Court granted the prayers in the following terms;

a. The stay of execution is granted provided that the Appeal is filed within 60 days from the date of this ruling.

b. The Applicant to provide security for the due performance of the decree in the sum of Kshs. 500,000/- (Five Hundred Thousand only) within 60 days from the date of the ruling which sum should be deposited in an interest earning account in the joint names of both Advocates of the parties or a bank guarantee of a similar amount.

c. If the Applicant fails to comply with either of a)-b) above the stay lapses and the Application stands dismissed, 60 days from this date.

d. Costs of the application shall be met by the Applicant.

5. Vide an application dated the 12/10/2020 the Applicant/Plaintiff moved the Court for an order that the OCS Makuyu Police station to provide security during the execution of the decree issued by the Court on the 17/5/19.

6. The application is premised on the grounds set out in para a-h of the application. Interalia, that the Court granted judgement in favour of the Applicant. That the 3rd -5th Respondents successfully obtained conditional stay subject to filing of the Appeal and payment of security in the sum of Kshs 500,000/- within a period of 60 days from the date of the ruling on the 16/1/2020. That the Respondents have failed to comply with the terms of the conditional stay and the judgement of the Court. That they are still in occupation of the property and in addition have removed or destroyed the beacons erected on the land by the Applicant. Further that on the 3/10/2020 they trespassed onto the land and erected a fence in disobedience of the Court orders issued in the judgement.

7. The application is supported by the affidavit of Francis Mburu Kamau who deponed and reiterated the grounds set out in the preceding paragraph. In addition, he states that actions of the Respondents amount to contempt of Court orders. That the Applicant intends to proceed with execution of the Court orders and hence the need for provision of security be availed during the exercise.

8. The Respondents have opposed the application and, in his Replying Affidavit, sworn by Peter Ndegwa Macharia who deponed that the application is based on half-truths and concealment of material information with the aim of misleading the Court. That a Notice of Appeal was filed on the 17/5/19 and the Memo of Appeal filed on the 7/10/19.

9. With respect to the terms of the conditional stay issued on the 16/1/2020, the Respondents deponed states that they duly complied with the terms as set out by the Court. That, notwithstanding the stay of execution, the Applicant has continued to trespass on the suit land, erected beacons and caused the closure of the register of the suit land for purposes of subdivision.

10. He concluded that the application is bad in law, misconceived and an abuse of the process of the law.

11. In response, the Applicant states that Respondents failed to deposit the security or procure a bank guarantee within 60 days of the date of the ruling of 16/1/2020. This ought to have been done by the 15/3/2020 but was only secured on the 31/3/2020, 16 days later hence out of time and without the appropriate leave of the Court having been sought and obtained. That since the Respondents failed to comply with the terms of the conditional stay, the same lapsed and ought to be allowed to execute the judgment in his favour.

12. I have read and considered the written submissions of the parties filed in this case.

13. The issue that commends itself for determination is whether the Respondents complied with the terms of the conditional stay orders issued on the 126/1/2020.

14. The Court issued conditional stay as set out in para 4 above. It is not in issue that the first condition to wit the filing of the Appeal within 60 days was complied with. The issue is with respect to the second condition. It is on record that the Court ordered the Respondent to provide security for the due performance of the decree in the sum of Kshs. 500,000/- (Five Hundred Thousand only) within 60 days from the date of the ruling which sum should be deposited in an interest earning account in the joint names of both advocates of the parties or a bank guarantee of a similar amount.

15. The period set by the Court was 60 days from the 16/1/2020.

16. Order 50 Rule 1 -3 of the Civil Procedure Rules provides as follows;

“1). Where by these Rules or by any judgment or order given or made, time for doing any act or taking any proceedings is limited by months, and where the word “month” occurs in any document which is part of any legal procedure under these Rules, such time shall be computed by calendar months unless otherwise expressed.

17. From the above provisions where a specific time has been fixed for doing an act or taking any proceedings, the following are excluded; Sunday, public holidays, Christmas and Good Friday where the last day falls on these days; where the time falls on a day when offices are closed, time extends until the day when the offices are next open; the 21st December to the 13th January during the Court vacation.

18. The meaning of calendar month is given in the Black’s Law Dictionary, 9th Edition at page 1099as one of the twelve period of time in which the calender is divided; any time period approximating 30 days. In a calender month all the days are included in counting time.

19. I have perused the bank guarantee dated the 31/3/2020 enclosed by the Respondent to his affidavit. The Respondent has urged this Court that it provided the security within the stipulated time ordered by the Court. The Applicant holds a different view.

20. Order 50 Rule 2 applies where the time for doing an act falls on a Sunday or public holiday then such days should be excluded. In this case time started running on the 16/1/2020 and since the 60th day fell on a Sunday that is the 15/3/17, that day was excluded and the 60th day is deemed to be on the 16/3/2020.

21. It is the finding of this Court that the Respondent did not comply with the provision of security within 60 days as ordered by the Court.

22. Consequently, the orders of stay issued on the 16/1/2020 lapsed on the 17/3/2020. The Respondents have not made any effort to seek leave of the Court for extension of time to enable them comply with the said orders.

23. Both parties have accused each other of disobeying the judgement of the Court; the Applicant states that the Respondents have trespassed onto the suit land and removed and destroyed beacons while the Respondents contend that the Applicant has caused the suit land to be registered in his name and closed the register for subdivision.

24. Contempt of Court is a serious matter. The Court has to be moved by way of an application to determine the contempt. In this case there is no application placed before the Court. Parties are bound by their pleadings. I decline the invite without any impleading by the parties.

25. It is to be noted that the Respondents have filed an Appeal in the Court of Appeal. Order 45 Rule 6(1) states that no Appeal shall operate as a stay of execution or proceedings. The imperative is that a party must seek and obtain stay of execution in the Court that made the orders or the Court that he has appealed to.

26. In the circumstances of this case, the Court notes that there are no orders of stay of execution either by this Court or the Court of Appeal.

27. I find the application has merit. It is allowed with costs in favour of the Applicant.

28. It is so ordered.

DELIVERED, DATED AND SIGNED AT MURANG’A THIS 28TH DAY OF JANUARY 2021.

J G KEMEI

JUDGE

Delivered in open Court in the presence of;

Mwariri HB Ngaywa for the Plaintiff

1st and 2nd Defendants – Absent

Ms Macharia HB for Waithera Mwangi for the 3rd – 5th Defendants

6th Defendant – Absent

Court Assistant: Kuiyaki