Gitonga Willie , Catherine Ngonyo Gitonga And Sammy Gitari Nyaga (As trustees of Christ Victory Ministries International) v Ann Wanja Kingara [2020] KEELC 385 (KLR) | Stay Of Execution | Esheria

Gitonga Willie , Catherine Ngonyo Gitonga And Sammy Gitari Nyaga (As trustees of Christ Victory Ministries International) v Ann Wanja Kingara [2020] KEELC 385 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC APPEAL NO. 9 OF 2020

GITONGA WILLIE , CATHERINE  NGONYO GITONGA AND

SAMMY GITARI NYAGA (As trustees of Christ

Victory Ministries International)...........................APPELLANT/APPLICANT

VERSUS

ANN WANJA KINGARA...............................................................RESPONDENT

(Being An Appeal  From The Judgment  And Decree of the Chief Magistrates Court Kiambu (Hon. S Atambo, Senior Principal  Magistrate  Presiding) Given on  the 3RD  Day  of February  2020 in the Chief Magistrates  Court At Kiambu Civil Suit No. 234 Of 2005)

BETWEEN

ANN WANJA KINGARA....................................................................PLAINTIFF

VERSUS

COUNTY GOVERNMENT OF KIAMBU.................................1ST DEFENDANT

GITONGA WILLIE, CATHERINE  NGONYO GITONGA AND

SAMMY GITARI NYAGA(As trustees of Christ

Victory Ministries International )........................................2ND DEFENDANT

RULING

The matter for determination is the Notice of Motion Application dated  10th February 2020, by the Appellant/ Applicant seeking for orders that;

1. This Honourable Court be pleased to grant an order  for stay of execution  of the Decree of the Lower Court  in Kiambu CMCCC No. 234 of 2005,  pending the hearing and determination of this Appeal.

2. That cost of this Application be in the cause.

The Application is premised on the grounds that the Appellant/ Applicant is dissatisfied with the Judgment and resultant Orders of the lower Court and has preferred an Appeal.

The case is in respect of land for which the Appellant/ Applicant holds title  and if the Decree is executed, the Appellant/ Applicant will suffer substantial and irreparable loss, which cannot be compensated by an award of damages. Further that if the Decree is executed, the Appeal will be rendered nugatory. That the Appeal raises weighty and triable issues for the determination by this Court and  it had been brought with quick dispatch and the Appellant is willing to give an undertaking as to any  damages  that the Respondent may suffer.

The  Application  is supported by the Affidavit of  Bishop  Winston Gitonga  Willie,  who reiterated the contents of the grounds on the face of the Affidavit and averred   that  the suit in the lower Court relates to  title Number Kiambu / Municipality Block 11/340,registered in the name of the Appellant/Applicant. That the Respondent claimed the suit property to be site for a parcel of land known as Unsurveyed  Business cum residential  Plot No. 7-Kiambu  Municipality,  which she purported to have been allotted  vide an allotment letter dated 27th September 1993. That  Appellant/ Applicant was allotted the land on 12th August 1993,before the Respondent.

It was his contention  that though there is a discrepancy between the land  that the Appellant/ Applicant holds measuring0. 2 haas  compared to the one claimed by the Respondent 0. 06ha ,the Respondent was curiously awarded the entire land  registered in the  Applicant’s favour by the lower Court . Further that the Appellant/ Applicant is in  occupation and  possession of the suit property and has developed a  Church, Residential units, Restaurant and various shops,  and in the best interest  of Justice,  the substratum of  the Appeal should be preserved as the Appeal raises weight issues. That the Appellant/ Applicant is anxious to have the appeal heard and determined expeditiously and thus the Respondent does not stand to suffer any prejudice.

The Application is opposed and the Respondent, Ann Wanja  Kingara,  swore a Replying Affidavit  on 4th March 2020,  and averred that upon the delivery of the Judgment, the Appellant/Applicant was ordered to vacate  the suit premises and further  execute transfer documents. That her Advocate has advised her that the Application raises no triable issues at Appeal, as the Appellant/ Applicant has annexed documents that had already been placed before the presiding Magistrate. Further that a title deed and Certificate of search does not prove that the Appellant/ Applicant is the true owner of the suit property since no proof of payment was provided.

She further averred that she had proved her case on the balance of probabilities and the Court found that the Certificate of lease issued pursuant to the  Appellant’s/ Applicant’s  occupation  were invalid as it was anchored on illegality  and  she should not suffer prejudice  due to the Appellant/Applicant  failing to conduct due diligence. It was her contention that the Court already made a determination in her favour and she stands to suffer irreparable and substantial loss that cannot be compensated by an award of damages as the Appellant/ Applicant is still in occupation.

She urged the Court to dismiss the Application, but in the event the Application was to be allowed, the Appellant/ Applicant should be ordered to deposit Kshs. 200,000/= in Court until the determination of the Appeal in order to alleviate the loss she is suffering.

The Application was canvassed by way of written submissions which the Court has carefully read and considered and the Court finds that the issue for determination is Whether the Appellant/Applicant is entitled to stay of Execution orders pending the hearing and determination of the Appeal.

The Appellant/Applicant has sought for stay of execution of the Judgment delivered by Hon. S. Atambo on  3rd February 2020, allowing the Respondent’s case and therefore ordering that  the Appellant/Applicant vacates  the suit property and the  title deed issued in favour of the Appellant be cancelled

The guiding provisions of the Law with regards to Stay of Execution are found in Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010which  provides that an applicant must demonstrate the following:-

a.Substantial loss may result to the applicant unless the order was made;

b.The application was made without unreasonable delay;    and

c. Such security as the court orders for the due performance of such decree or order as may ultimately binding on him has been given by the applicant.

In the case of Civil Appeal No.107 of 2015, Masisi Mwita..Vs…Damaris Wanjiku Njeri (2016) eKLR, the Court held that:-

“The application must meet a criteria set out in precedents and the criteria is best captured in the case of Halal & Another..Vs…Thornton & Turpin Ltd, where the Court of Appeal (Gicheru JA, Chesoni and Cockar Ag. JA) held that:-

“The High Court’s discretion to order stay of execution of its Order or Decree is fettered by three conditions,namely;- Sufficient Cause, substantial loss would ensue from a refusal to grant stay, the Applicant must furnish security, the application must be made without unreasonable delay.

In addition, the Applicant must demonstrate that the intended  Appeal will be rendered nugatory if stay is not granted as was held in Hassan Guyo Wakalo…Vs…Straman EA Ltd (2013) as follows:-

“In addition the Applicant must prove that if the orders sought are not granted and his Appeal eventually succeeds, then the same shall have been rendered nugatory.”

These twin principles go hand in hand and failure to prove one dislodges the other”

This Court will then proceed to determine whether the Appellant/Applicant herein has satisfied the required standard for grant of stay orders pending Appeal. First, the Applicant must show that he will suffer substantial loss. It is evident from the above provisions of law that the Court has discretion to issue an Order of stay of execution. However, the said discretion must be exercised judicially.  See the case of Canvass Manufacturers Ltd…Vs…Stephen Reuben Karunditu, Civil Application No.158 of 1994, (1994) LLR 4853, where the Court held that:-

“Conditions for grant of stay of execution pending appeal, arguable appeal and whether the appeal would be rendered nugatory. The discretion must be judicially exercised”.

Further in the case of Stephen Wanjohi…Vs…Central Glass Industries Ltd, Nairobi HCC No.6726 of 1991, the Court held that:-

“For the court to order a stay of execution there must be:-

i. Sufficient cause

ii. Substantial loss

iii.No unreasonable delay

iv. Security and the grant of stay is discretionary”.

Further the Court will take into account that it is not the practice of the Courts to deprive a successful litigant of the fruits of his/her litigation.  Again, the Court will take into consideration that the purpose of stay of execution pending Appeal is to preserve the subject matter.  See the case of Consolidated Marine...Vs...Nampijja & Another, Civil App.No.93 of 1989 (Nairobi), where the Court held that:-

“The purpose of the application for stay of execution pending appeal is to preserve the subject matter in dispute so that the right of the appellant who is exercising his undoubted right of appeal are safeguarded and the appeal if successful is not rendered nugatory”.

On whether the Appellant/ Applicant will suffer substantial loss, it is not in doubt that the instant suit is currently registered in the name of the Appellant/ Applicant. The  Appellant/ applicant is currently in possession of the suit property and the Respondent in her plaint had sought for vacant possession and cancellation of the title held by the Appellant/ Applicant which orders were granted by the trial Court.

The Appellant/ Applicant has appealed against the said orders that have granted the Respondent vacant possession, and have also cancelled his title. The   Appellant/ Applicant is in possession and there are buildings on the suit property.  Therefore the Court finds that if the  stay is not granted, and the  Appellant/ Applicant is evicted from the suit property, then it  will have suffered substantial loss  given that it is in possession and that no amount of damages will be able to compensate it. Further the Appellant/ Applicant is in possession of a title deedwhich the trial Court has ordered that it be cancelled and that the  Appellant/ Applicant signs  the transfer documents,  failure to which the Executive officer should sign the said documents .

It is the Court’s considered view that if the title in favour of the Appellant/ Applicant is cancelled before the appeal is heard and determined and the same is registered in the name of the Respondent, the Respondent will be at liberty to  deal with the suit property as she deems fit  including but not  limited to disposing of it and subdividing the same. In the event that the Appellant/ Applicant is successful in the appeal, it is Court considered view  that the Appeal will have been rendered nugatory  and the Appellant/ Applicant will definitely suffer  substantial loss as apart from cancellation, the sui property  might be disposed of, thus rendering  the Appeal a mere academic service.

The Appellant/ Applicant must also satisfy the Court that the Appeal was brought without inordinate delay. The instant Application was filed on  10th  February 2020. The Court delivered its Judgment on 3rd February 2020. There was no ordinate delay in filing the instant Application.

Therefore the Court finds and holds that the Application seeking for the stay execution is merited as the Court has already held above that the Appellant/ Applicant will suffer  substantial loss and the Appeal will be rendered nugatory.

The Court is conscious of  the fact that the Respondent must also be allowed to  enjoy the fruits of her Judgment and balancing the same with the idea that the suit property must be preserved, the Court finds that it will be in order if the  Appellant/ Applicant is ordered to pay the Kshs. 200,000/= as security for costs.

Having now carefully considered the instant Notice of Motion Application dated 10th February 2020,the Court finds it merited and allows it entirely with costs being in cause. The Appellant/ Applicant is ordered to deposit in Court the sum of Kshs.200,000/= as security for costs within a period of 30 days from the date hereof.

It is so ordered.

Dated, signed and Delivered at Thika this  3rd day of December, 2020.

L. GACHERU

JUDGE

3/12/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Wachira and Mr. Ndegwa for the Appellant/Applicant

Mr. Omondi holding brief for Mr. Gachie for the Respondent

L. GACHERU

JUDGE

3/12/2020