Henry Waithaka Wachira v Consolata Njeri Maingi, Samuel Kimani Muchiri, Jeremiah Maina Mwangi, Francis Macharia Mwnagi, Fr. John Munji, Nakuru Kiamunyeki Co. Ltd, Land Registrar Nakuru, Attorney General, George Karanja Maina, David Wainaina, Stephen Njenga Gichuru, Richard Onchweri Atuke, Faith Njeri Wambugu & Jeremiah Maina Mwangi [2020] KEELC 1307 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC  NO 230 OF  2018

HENRY WAITHAKA WACHIRA(Suing as the legal representative of

JOSEPH  WACHIRA WAITHAKA ( Deceased).........................................PLAINTIFF

VERSUS

CONSOLATA NJERI MAINGI(sued as the legal representative of

CHARLES MAINGI MACHARIA (Deceased)................................1ST DEFENDANT

SAMUEL KIMANI MUCHIRI.....................................................2ND DEFENDANT

JEREMIAH MAINA MWANGI ..................................................3RD DEFENDANT

FRANCIS MACHARIA MWNAGI..............................................4TH DEFENDANT

FR. JOHN MUNJI..........................................................................5TH DEFENDANT

NAKURU KIAMUNYEKI CO. LTD.....................INTENDED 6TH DEFENDANT

LAND REGISTRAR NAKURU............................. INTENDED 7TH DEFENDANT

ATTORNEY GENERAL .........................................INTENDED 8TH DEFENDANT

GEORGE KARANJA MAINA................................INTENDED 9TH DEFENDANT

DAVID WAINAINA................................................INTENDED  10TH DEFENDANT

STEPHEN NJENGA GICHURU...........................INTENDED 11TH DEFENDANT

RICHARD ONCHWERI ATUKE........................INTENDED 12TH DEFENDANT

FAITH NJERI WAMBUGU..................................INTENDED 13TH DEFENDANT

JEREMIAH MAINA MWANGI..........................INTENDED 14TH DEFENDANT

RULING

1. The plaintiff’s application dated 18th February 2019 which interalia sought the substitution of the  plaintiff by the applicant; the substitution of the 1st  defendant;  the  revival  of the suit  that the Court had declared as having abated vide an order made on 30th January  2015;  the joinder of several  other  parties and an order restraining any further subdivision of  land parcel Dundori/Lanet Block5/257 and 261 by the 1st defendant and further orders restraining any dealings in respect of several  resultant subdivisions was dismissed by the Court  on 30th September 2019.

2. The Applicant aggrieved and dissatisfied by the ruling of the Court on 8th October 2019 filed a Notice of Appeal signifying his intention to appeal against the ruling of the Court. The Notice of appeal was served on the Attorney General  and  the 1st defendant  on the same date and on the other Respondents subsequently  as detailed on the affidavit  of service  sworn  by Kenneth Maingi  on 29th October 2019 and filed in Court on 12th November 2019. The applicant was granted leave to appeal against the ruling on the same date the ruling was granted. In regard to the oral application by the applicant for an injunction pending appeal, the Court directed that a formal application be filed for consideration by the Court.

3. The Plaintiff/Applicant filed the Notice of Motion dated 15th October 2015 which is the subject of this ruling. The application was brought  under Order 24 Rule 3, Order  40 Rules 1(a), 10 (1) (a), Order 42 Rule 6 and Order 51 Rules 1 to 3 of the Civil  Procedure Rules and Section 1A, 1B and 3A of the Civil Procedure Act. By the application the applicant principally sought the following orders:-

(i)     That this Honourable Court be pleased to restrain the 1st defendant/respondent  whether by herself or  servants or agents form subdividing or further subdividing Dundori/Lanet Block5/257 and Dundori/Lanet Block 5/261 into plots, registering  purported subdivision of the same, selling charging of the said parcels or subdivision of the same or otherwise dealing with the same pending  the lodging, hearing  and determination of the plaintiff’s intended   appeal.

(ii)    That the 1st to 5th  defendants and the intended 9th to 14th Defendants/ Respondents be restrained  by themselves, servants or agents from  selling  and charging  of:-

Dundori Lanet Block 5/2304, 2305, 2302, 2303, 2306, 2307, 2308, 2460; and 2461 respectively, pending the lodging, hearing and determination of the plaintiff’s intended appeal.

(iii)   That the Honourable Court be pleased to restrain  the  6th defendant from registering transfers  and/or charges in respect  of Dundori Lanet block 5/257 and Dundori Lanet  Block 5/261 and of :-

Dundori Lanet Block 5/2304, 2305, 2302, 2303, 2306. 2307,2308, 2460, and 2461 respectively is pending the lodging, hearing and determination of the plaintiff’s intended appeal.

4. Although under prayer (3) of the application the applicant sought leave to appeal against the decision made on 30th September 2019 such leave was granted upon the request of the applicant’s counsel following the delivery of the ruling.

5. The plaintiff’s application is supported on the grounds set out on the body of the application and on the supporting affidavit sworn by the plaintiff applicant. The applicant basically faults the Court’s exercise of its discretion in disallowing the application. The applicant contends the Court failed to consider that the applicant’s counsel had made a mistake in his handling of the proceedings which was excusable and that the applicant had demonstrated sufficient cause to warrant being granted extension of time to substitute the plaintiff. The plaintiff  further contended that the Court had jurisdiction to grant an injunction notwithstanding  it had dismissed an earlier  application for injunction if the interest of justice stood to be served by preserving  the subject matter of the appeal and in support of this assertion  placed reliance on the Court of  Appeal  decision in  Madhupaper  International  Ltd  -vs-  Kern (1985) KLR 840. The plaintiff/Applicant asserted that notwithstanding his application for injunction was dismissed by the Court, the Court had jurisdiction to order the maintenance of the status quo pending the hearing and determination of the intended appeal to ensure the subject matter of the appeal was not fundamentally altered in the intervening period before the appeal is heard. He  argued that unless the subject  matter  of the appeal  was preserved  the appeal may  be an exercise in futility  if the property the subject of the appeal  is  dissipated, disposed or dealt with in such a manner as would render the appeal  nugatory.

6. The 1st defendant Consolata Njeri Maingi, swore a replying affidavit on 12th November 2019 in opposition to the plaintiff/applicant’s application. The 1st defendant’s detailed replying affidavit in the main faults the plaintiff/applicant for being dilatory in regularising   his participation in the proceedings in this suit commenced by his late father. The 1st defendant particularly faulted the applicants for not timeously applying for substitution following his father’s death and/or timeously applying for the revival of the suit following its abatement. Going  through the 1st defendant’s replying affidavit, it reads like grounds  upon  which the decision/ruling  of the Court rendered on  30th January 2019 ought to be affirmed. I am not sitting as an appellate Court and I cannot sit on appeal on my brother   Judge’s decision as that is the province of the Court of Appeal.

7. The application was canvassed by way of written submissions. The applicant essentially at the time of  filing  the application was seeking two  main prayers; firstly leave to appeal; and  secondly injunctive  orders with the object of having the subject  matter preserved  until the appeal  is heard and determined. As observed earlier in this ruling leave to appeal was granted on the same date the ruling was delivered on 30th September 2019. The applicant in the supplementary submissions filed on 23rd July 2020 properly abandoned the prayer for leave to appeal. Thus what is contested in this application is whether or not the Court should grant the injunction orders sought by the applicant pending the hearing and determination of the intended appeal. Had the application dated 18th February 2019 upon which the ruling dated 30th September 2019 sought to be appealed from been successful, the abated plaintiff’s suit would have been reinstated and/or revived and the substitution of the plaintiff and the 1st defendant ordered.

8. This Court has granted the Applicant leave to appeal against the ruling of the Court delivered on 30th September 2019. The appellate Court may or may not agree with this Court’s decision. It is on this account the applicant prays that the prevailing status quo in regard to the affected suit properties be preserved so that the appeal, if successful, is not rendered nugatory.

9. The parties have presented rivalling arguments as to whether this Court has jurisdiction to grant an injunction where it has made a decision dismissing a prayer for injunction. The 1st defendant has submitted that the Court can only entertain an application for injunction when exercising its appellate jurisdiction as provided under Order 42 Rule 6 (6) of the Civil Procedure   Rules. Order 42 Rule 6provides as follows:-

(6)    Notwithstanding anything  contained in subrule  (1) of this rule the  High Court shall have Power  in the exercise of its appellate   jurisdiction  to grant  a temporary injunction on such terms  as it thinks just provided  the procedure  for instituting  an appeal from subordinate Court  or tribunal  has been  complied with.

10. The 1st  defendant in support of her submissions  placed reliance  on the persuasive authority  of my brother  Justice C K  Yano in the case of Bartholomew   Mwanyungu  & 3 others -vs-  Florence Dean Karimi (2019) where in holding  the Court  lacked jurisdiction to grant  injunction where it had rendered its decision the learned Judge stated as follows:-

“It should be noted from the above provision of the law, and in particular Order 42 Rule 6(6) that this Court had the power to grant injunction only when exercising its appellate jurisdiction. In the  instant  case,  the Court  has already  rendered its decision and the applicant has stated she intended to appeal to the Court of Appeal against the decision  of this Court given on 18th April 2018. On this basis alone, I find that the Court does not have the jurisdiction to entertain the present application and grant the order of injunction sought by the applicant. This Court is no longer exercising its appellate jurisdiction. The applicant has already filed a Notice of Appeal in the Court of Appeal under Rule 5 (2) of the Court of Appeal Rules, the Court of Appeal may grant an injunction in Civil proceedings where a Notice of Appeal has been lodged in accordance with Rule 75. ”

11. The 1st defendant thus urged the Court to down  its tools on account of lack of jurisdiction no doubt  in sync with  the holding in the case of The Owner of the Motor  Vessel “LillianS” –vs- Caltex Oil ( Kenya) Ltd (1989) KLR where Nyarangi JA famously  stated:-

“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”.

12. Further the 1st defendant has submitted that even if the Court was to hold it had the jurisdiction to entertain the instant application the applicant has not met and/or satisfied the conditions upon which an injunction pending appeal may be granted. The 1st defendant has submitted that the applicant has not  demonstrated  that he has an arguable  appeal and/or  that the appeal would be rendered nugatory  if the orders sought are not granted. Further the 1st defendant has argued the Applicant has not demonstrated he would suffer irreparable loss if the injunction sought is not granted. The 1st defendant in support of this submissions relied on the case of Bilha  Mideva Buhuku -vs- Eveylyne Kanyere (2016) eKLR and Joseph Macharia Nderitu -vs- NIC Bank ( Kenya) Ltd  & another  Nakuru HCCA No.6 of 2020. In the latter case Hon. Justice Prof Joel Ngugi in considering the conditions an applicant for injunction pending appeal required  to meet stated  thus  at paragraph 17 of his ruling:-

17. “it seems to me that, therefore, to succeed in an application such as the present one, an Applicant must demonstrate three points:-

(a)  First, an applicant must demonstrate that the status quo they intend to preserve prevails. As the Court of Appeal stated in the Daniel Lomagul  Kandei  Case, where circumstances have already  changed, as for example  where titles  to land have already passed and new ones issued, an injunction pending appeal  cannot  issue as it will serve no purpose. Differently put, an injunction pending appeal cannot be used to un-do acts already done. It cannot be mandatory in nature; it can only be preservatory.

(b)  Second, an applicant must show that they have an arguable appeal. Contrary to what Mr. Omullo argued before the Court, the Applicant is not obligated to demonstrate that they have an appeal with overwhelming chances of success. A single arguable point of appeal would be sufficient.

(c)  Third, an applicant must demonstrate that he would suffer irreparable loss or that the appeal would be rendered nugatory if the injunction sought is not granted.

13. I am however mindful that my brother Hon. Justice Prof. Ngugi was in making the ruling exercising his appellate jurisdiction under Order 42 Rule 6 of the Civil Procedure Rules unlike in the instant  matter where  the Court of Appeal  is the appellate Court and consequently the considerations may be different.

14. The plaintiff/applicant in contrast to the position taken by the 1st defendant maintains the Court has jurisdiction to grant an injunction pending the hearing and determination of the appeal. The applicant argues, he has a right to appeal the decision of this Court and as indicated, the Court did grant him leave to do so. He argues that if the defendants/ respondents are permitted  to deal with the properties the subject of the intended appeal,  they could dispose, sell or otherwise  deal with the properties during the pendency of the intended appeal  which would render the appeal nugatory and it is on that basis he seeks that the properties  be preserved  in the status  they are in until the intended appeal   is heard and determined. The Applicant has submitted that notwithstanding that the Court dismissed the earlier application, it has jurisdiction, if the interest of justice will be served by the preservation of the subject matter, to grant an injunction pending  the hearing  of the appeal. The Applicant  for this proposition  places reliance on the Court of Appeal  case of  Madhupaper  International Ltd –vs- Kerr (1985) KLR 840 where  the Court relied on the ruling by Megarry, J in the English case of Eringford Properties  Ltd –vs- Chesire County Council (1974) 2 14ll ER 442 in affirming  that the Court appealed from  has jurisdiction to issue an injunction in a case where it has dismissed an application for injunction. In the case of Eringford Properties Ltd -vs- Chesire County Council(supra) the learned judge stated thus:-

“I can see no real inconsistency in any of these cases. The questions that have to be decided on the two occasions are quite different. Putting it shortly, on a motion the question  is whether the Applicant has made out a sufficient case to  have the respondent restrained pending the trial. On the trial, the question is whether the plaintiff has sufficiently proved his case. On the other hand where the application is for an injunction pending an appeal,  the question is whether  the judgment  that has been given is one  on which the successful party ought  to be free to act despite  the pendency of an appeal. One of the important factors in making such a decision, of course is the possibility that the judgment may be reversed or varied; Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A Judge who feels no doubt  in dismissing a claim to an interlocutory  injunction  may, perfectly  consistently with his decision, recognise  that  his decision may be reversed,  and that the comparative  effects of granting or refusing  an injunction pending  an appeal are such  that it would be right  to preserve  the status  quo pending the appeal. I cannot see  that a decision that no injunction should be granted  pending an appeal  against  the decision  not to grant  an injunction, or that by refusing  an injunction pending the trial the judge  becomes functus officio  quoad  granting any injunction  at all.”

15. In the case  of Anthony Raymond Cordeiro & 2 others  -vs-  Adriam Noel Carvllo & 5 others (2014) eKLR  in an application  similar to the one before  me seeking  injunctive  orders pending  the determination of an intended appeal the Court referred to the cases  of  Madhur paper International Ltd –vs-  Kerr (supra)andEmma Muthoni Wambaa & Another –vs-  Joseph  Kibaara Kariuki (Mombasa HCCC No.274 of 2009) which had applied the principles  as propounded  in  the Erinford  Properties Ltd –vs-  Chesire County Homes (supra). In the Madhurpaper International case -vs- Kerr(supra ) it was held :-

“ Where  a judge dismissed an application for an interlocutory  injunction, he has jurisdiction to grant  the  unsuccessful  litigant an injunction pending an appeal against the dismissal  and there is no inconsistency in  doing so as the purpose of granting the  injunction would be to prevent  the decision  of the appellate Court from being  nugatory should the appeal  succeed.”

16. In  the Emma  Muthoni  Wambaa -vs-  Joseph  Kibaara (supra), Okwengu, J ( as she then was) inter alia held:-

“Therefore it is clear that this Court has jurisdiction to hear the present application and if persuaded grant orders sought.

It is evident that the purpose of the plaintiff’s intended appeal is to preserve the subject matter of the suit which is the suit properties now in possession of the 3rd – 7th Defendants. The 3rd – 7th Defendants claim they are bonafide purchasers for value without notice. That is a defence that the Defendants would have the opportunity to fully ventilate when the suit is heard. The main consideration herein is whether the plaintiff’s intended appeal would be rendered nugatory if the orders sought are not granted. In my considered view, the Defendants would not in any way be prejudiced by the issue of an order of injunction restraining them alienating or transferring, or charging the suit property. On the other hand, if the order of injunction  is not  given  the  defendants who are in possession of the title to the suit properties  may dispose of  the suit property or deal with it in a manner  that may render the plaintiff’s appeal nugatory if successful. I think in the circumstances of this case, it is fair and just that indeed, in the interest of justice that the subject of the suit be preserved.”

17. On the question whether  or not this Court would have the jurisdiction to issue  an injunction where it has already  made an order dismissing an injunction in the instance where the unsuccessful  party  seeks to appeal  against the dismissal order, I would say that the Court  has  jurisdiction  as illustrated  in the judicial  decisions referred to above . However, the grant of an injunction pending an appeal would depend on the peculiar cirmstances and facts of each case. In the present case, it is evident the suit was never heard on its merits. The suit by the plaintiff abated as did the counterclaim by the 1st defendant as the original plaintiff and the original 1st defendant died and were not substituted within the stipulated time. The application by the plaintiff/applicant seeking revival of the suit and for him to be substituted in place of his deceased father and the enjoinment of several other defendants who had acquired some interest in the suit property and for the preservation of the suit property pending the determination of the suit is what was dismissed by the Court on 30th September 2019.

18. The applicant has faulted the Judge, (Munyao, J) in his appreciation of the law in regard to substitution of parties and the role of a personal representative in Court proceedings. In particular he contends lady Justice Waithaka erred when she made an order striking out a suit against a dead person who had not been substituted. In support of his submissions in this regard the applicant relied on the case of Tronistik Union International  & Another -vs- Jane  Mbeyu & Another (1993) eKLR. The applicant has argued that the misapprehension by the Learned Judge in the application of the law mired the Court’s exercise of discretion in determining the application dated 18th February 2019. On the material on record I cannot hold that the applicant’s intended appeal would be frivolous. The appellate court will determine whether in the exercise of his discretion the Learned Judge acted and/or properly applied the appropriate principles. As I am not sitting on appeal on my brother judge’s decision I cannot take that role and I would be out of order if I purported to exercise that mandate.

19. Having held this Court has jurisdiction to grant an injunction pending the determination of the intended appeal notwithstanding the dismissal of an earlier application for injunction, I have to determine whether in the circumstances of this case an injunction is merited. The essence  of granting an injunction was aptly put in the case  of Assanad -vs- Petitt (1989) KLR 241 where  the court held  thus:-

“ The object  of  a temporary  injunction is to keep things in status quo that if at the hearing the plaintiffs obtain judgment in their  favour  the defendants will have been  prevented from dealing  in the meantime with  the property  in such a way  as to make  that judgment ineffectual”

20. In the present matter it is the defendants and the intended defendants  (should joinder be allowed) who hold title and are in possession of the suit  property. The plaintiff as per the plaint filed herein claims ownership of the suit property. The defendants likewise claim ownership of the suit property through the 1st defendant. The plaintiff alleges fraudulent dealing by the 1st defendant in offering to the defendants for sale properties which the 1st defendant knew he did not own and that the same were owned by the plaintiff. The main suit as explained herein above has never been heard on its merits. Were the plaintiff /Applicant’s appeal to succeed, that would result in the applicant being substituted in place of his deceased father and the suit being revived to be heard on merits. The suit in other words would recommence and possibly the pleadings would be re-opened.

21. In the eventuality  of the plaintiff/Applicant’s  appeal  being successful, it is  in my view  necessary to have the properties  the subject  of the suit  preserved in the condition  they  are in  at the moment  to forestall the appeal  being rendered nugatory. I take  the position  that the hardship visited  on the defendants would be  far much  less than for the plaintiff/Applicant to be successful on the appeal only to find the suit properties have  been disposed, alienated and/or  charged to persons  and/or parties who are not parties  to the present suit.

22. In the result I allow  the plaintiff /applicant’s Notice of Motion dated 15th October  2019 in terms of prayers (5), (7) and  (8) of the Notice of Motion subject to the condition that the Plaintiff/Applicant shall  file the record of Appeal  and serve the same  on the  Respondents  within  a period  of Ninety (90) days    from the date of this ruling failing which  the orders of injunction granted herein will automatically  lapse and will stand vacated. The costs of the application will abide the outcome of the intended appeal.

23. Orders accordingly.

Ruling dated signed and delivered virtually at Nakuru this 24th day of September 2020.

J M MUTUNGI

JUDGE