GRACE MUTHONI GICHUNGWA & SALOME WANJIKU MBIRWA v SAMWEL KIBUI MBIRWA [2011] KEHC 201 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CIVIL APPEAL NO. 311 OF 2009

GRACE MUTHONI GICHUNGWA ……………………...…… APPELLANT/APPLICANT

SALOME WANJIKU MBIRWA …................................... 2ND APPELLANT/APPLICAN

VERSUS

SAMWEL KIBUI MBIRWA …………………….….. RESPONDENT/RESPONDENT

(Being an appeal from the whole decision  of 29th April 2009 of the Lands Appeals Tribunal in LND/16/20/43/2004 in regard o land parcel Dagoretti/Thogoro/315)

R U L I N G

Application for Stay of Execution

Dated 28th September 2011

I.INTRODUCTION

1. The original appeal arises from a Land Disputes Tribunal matter before the Provincial Tribunal. Being dissatisfied with the decision of the tribunal, an appeal was preferred to this High Court on the

23rd June 2009.

2. No action appears to have been taken on this appeal by the courts through the Deputy Registrar.

3. The respondent sold the land parcel LR Dagoretti/Thogoto/315 and titles issued in August 2011. The other parcel of land LR Dagoretti/Thogoto 76 remained intact.

4. The Pronvincial Disputes Appeals Tribunal had given the respondent the land parcel Dagoretti/Thogoto/315.

5. The new buyers were to be enjoined to the appeal by application of 18th October 2011. This was granted by consent of the parties.

6. By an application 28th September 2011, the applicant prayed for stay of execution.

IIAPPLICATION 28TH SEPTEMBER 2011

7. The applicant/appellant was not aware that the land had been sold. She now prays that there be no further dealings on the land till the determination of the appeal.

8. In reply, the advocate for the interested party stated the application was more of an injunction in form. The ingredients of an injunction has not been established.

9. The respondent stated he sold the land and had no further interest in the matter.

IIIFINDINGS

10. Where a matter is pending in court and the issue concerns land, no transfer of the said land should be permitted regardless that there exists orders of stay and or injunction or dealings of the land.

11. The respondent should have moved the file and or requested the deputy registrar to list the file for dismissal before the Hon. Judge. Once this would have been granted then would he have proceeded to have further dealings with the land. As such I find that the applicants have established that they have established their application.

12. If the same would not be granted, it would cause irreparable loss.

13. The application was brought without inordinate delay. The development on the land began in August 2011.

14. I hereby grant the orders as prayed in the application of 28th September 2011.

DATED THIS 16TH DAY OF DECEMBER 2011 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i)R. Mutiso instructed by M/s R.M. Mutiso & Co Advocates for appellant/applicant

ii) L S Opundo instructed by Opundo & Co Advocates for respondent/ original plaintiff

Editorial Summary

1. Civil Appeal

2. Civil Practice and Procedure

3. Subject of Main Subordinate Court Case

LAND

3. 1           i)             LR Dagoretti/Thogoto/76

ii)            LR Dagoretti/Thogoto/315

3. 2           Land Disputes Tribunal Act

3. 3           Decision of Provincial Lands Tribunal

Gives land to respondent

LR Dagoretti/Thogoto/315

3. 4           Appellant files appeal on 23rd June 2009

3. 5           Prayer for the award to be set aside.

3. 6           No action taken by parties.

3. 7           Respondent sells land

LR Dagoretti/Thogoto/315

3. 8           Appellants file application dated

28th September 2011 for stay of execution.

3. 9           The two new buyers apply to be enjoined

To the appeal suit – application granted on

1/11/2011 (Angawa J)

3. 10         Should stay of execution be granted?

4. Application 28th September 2011

a)            Pending the appeal respondent sells land

to interested party.

b)            Prays that, if stay is not granted than the appeal

will be rendered nugatory.

c)            Whereas transfer occurs, there should stay of

any dealings of the property till finalization of

the appeal.

5. In reply:

5. 1           Application is of an injunction.

5. 2           A prima facie must be established.

5. 3           The matter before court would be on a matter

of law.

5. 4           The appellants do not reside on the property

5. 5           In response respondent in person stated

he sold the land.

5. 6           The appellant prays for the right to be heard.

6. Held:

Application granted 28th September 2011

as prayed.

7. Case Law:

8. Advocates:

i)R. Mutiso instructed by M/s R.M. Mutiso & Co Advocates for appellant/applicant

ii)L S Opundo instructed by Opundo & Co Advocates for respondent/ original plaintiff