George Ahuyo Oluoch,Fanuel Otieno Oluoch & Vitalis Angucha Oluoch (Suing for and on behalf of the Estate of their father Michael Oluoch Ahuyo – Deceaced) v Siaya County Council [2017] KECA 320 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM:  GITHINJI, HANNAH OKWENGU &

J. MOHAMMED, JJ.A.)

CIVIL APPLICATION NO. 12 OF 2017

BETWEEN

GEORGE AHUYO OLUOCH ……...…….… 1ST APPLICANT

FANUEL OTIENO OLUOCH ………………. 2NDAPPLICANT

VITALIS ANGUCHA OLUOCH …………….3RD APPLICANT

(Suing for and on behalf of the Estate of their father

Michael Oluoch Ahuyo – Deceaced)

AND

SIAYA COUNTY COUNCIL…………................RESPONDENT

(Now Siaya County Government)

(An Application for stay of execution of the judgment of the High Court of Kenya, Environment and Land Court at Kisumu, (Kibunja, J.) dated 14th December, 2016

in

ELC CASE NO. 14 OF 2007)

*****************************

RULING OF THE COURT

[1] This is an application under Rule 5(2) (b) of the Court of Appeal Rulesfor stay of execution of the judgment of the   Environment and Land Court (ELC), (Kibunja, J.) pending the hearing and determination of an intended appeal.

[2] The applicants who appear in person are the joint administrators of the estate of Michael Oluoch Ahuyo, their  father who died on 13th April, 1990.  Their claim to land title No. Siaya/Kochieng B/1027 registered in the name of the respondent and which is being used as a public market was dismissed by the Environment and Land Court (ELC).

[3] The applicants’ case in the ELC was in essence that after the completion of the Land Adjudication process in mid 1980s, their deceased father Michael Oluoch Ahuyo was found to be the   proprietor of land parcel No. Kochieng B/20.  However, before Land Registration the land was unlawfully sub-divided into two parcels namely: Siaya Kochieng B/1027 and Siaya/Kochieng B/2018 and land title No. Siaya/Kochieng B/1027   registered in the name of Siaya County Council while title No Siaya/Kochieng B/1028 was registered in the name of    their deceased father.

[4] The trial Judge after consideration of the oral and documentary evidence made findings inter alia, that land titles Nos. Siaya/Kochieng B/20, Siaya/Kochieng B/1027 and Siaya/Kochieng B/1028 were registered on the same day – 26th September, 1990 as first registration, that Siaya/ Kochieng B/1027 and Siaya/Kochieng B/1028 are not sub-divisions of  Siaya/Kochieng B/20, that Siaya County Council has been in possession of said land  Siaya/Kochieng B/1027 from 1990s, that applicants could not acquire title No. 1027 by adverse possession as it was public land and that the applicants’ claim was time barred as it was filed over 12 years from the date the respondent was registered as proprietor.

[5] The applicants’ intend to appeal against those findings on the grounds contained in the draft memorandum of appeal.  The applicants admit that they were evicted from the said land on 21st April, 2016 long before the impugned judgment was delivered.

[6] Firstly, the applicants have not demonstrated that the intended appeal is arguable.  The only document filed in support of the   application is the judgment of the trial court.  The documentary evidence relied on at the trial has not been availed. While we appreciate that the applicants are not represented by a counsel, the Court has to determine the application in accordance with the settled principles. We regret to say that the applicants have not shown any arguable issue of fact or law arising from the findings of the trial court.

[7] Secondly, the applicants have not shown that unless stay of execution is granted, the intended appeal would be rendered nugatory.  The trial court made a finding of fact that Siaya County Council has been registered as proprietor of the suit land since 26th September, 1990, and has been using the land as a public market. Admittedly, the applicants were evicted from the suit land before the suit was determined. Thus, the judgment is not capable of execution save for recovery of costs.  The applicants claim that unless execution of the judgment is granted the respondent will sub-divide the land and allocate  plots to members of the public. However, there is no concrete   evidence such as a development plan of the suit land to show that allocation of the suit land to members of the public is imminent.

[8] For the foregoing reasons, the application has no merit and is hereby dismissed.  The costs of the application shall be costs in the appeal.

Dated and Delivered at Kisumu this 28th day of September, 2017.

E. M. GITHINJI

………………………

JUDGE OF APPEAL

HANNAH OKWENGU

…………………..….…

JUDGE OF APPEAL

J. MOHAMMED

……………..…………

JUDGE OF APPEAL

I certify that this is a true copy

of the original

DEPUTY REGISTRAR