Juster Gatwiri & Jane Tirindi M’Itiri v Emmanuel Muchomba Kinoti [2021] KEELC 4586 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC APPEAL NO. 112 OF 2019

JUSTER GATWIRI..............................................................1ST APPELLANT/RESPONDENT

JANE TIRINDI M’ITIRI...................................................2ND APPELLANT/RESPONDENT

VERSUS

EMMANUEL MUCHOMBA KINOTI.......................................RESPONDENT/APPLICANT

RULING

1. The applicant Emmanuel Muchomba Kinoti has filed a Notice of motion dated 6th October 2020 seeking an order of stay of execution of this court’s judgement dated and delivered on 23rd September 2020. The application is supported by the affidavit and supplementary affidavit of Emmanuel Muchomba Kinoti and on the grounds on the face of the application. The applicant contends that the appeal shall be rendered nugatory if the aforesaid orders are not issued.

2. The applicant averred that he had entered into a sale agreement with the 1st appellant for purchase of (1) acre to be excised from L.R. NKUENE/KITHUNGURI/663 for valuable consideration. That the suit premises was to be transferred after the completion of the succession proceedings relating to the 1st appellant’s father, but the 1st appellant failed to transfer the same. The applicant is aggrieved by the determination of this court delivered on 23rd September 2020 where it was stated that the applicant is only entitled to a refund of the purchase price. He therefore intends to appeal to the Court of Appeal.

3. The applicant further contends that the actions of the 1st and 2nd respondents in colluding and having all the parcels registered in the name of the 2nd respondent is in itself enough to show that the respondents can further their evil schemes and have the subject parcels further alienated and this informs his resolve to have the stay orders in place.

4. The respondents opposed the application vide their Replying affidavit dated 12th October 2020 stating that they have been in occupation of the suit premises from the time of the inception of the suit herein. That there is therefore no indication that the applicant shall suffer loss or damage. That the appeal is a non-starter since the 1st respondent did not have locus standi to enter into a contract of sale for the suit premises. That the intended appeal does not therefore raise any legal question for determination.

5. The application was canvassed by way of written submissions, both parties reciting the contents of their respective affidavits. The Applicant relied on the following cases i.e. Vishram Ravji Halai vs. Thorton & Turpin Civil Application No. Nai 15 of 1990 [1990] KLR 365 & Century Oil Trading Company Limited vs Kenya Shell Limited Nairobi (Milimani) HCMCA No. 1561 of 2007 and Samvir Trustee Limited vs Guardian Bank Limited Nairobi (Milimani) HCCC 795/1997. The Respondent cited the case ofJMM V PM [2018] eKLR.

Analysis and Determination

6. This is an application that invokes the discretionary powers of the court. The conditions to be met before stay is granted are provided via Order 42 Rule 6(2) of the Civil Procedure Rules which provides as follows:

“No order for stay of execution shall be made under subrule (1) unless– (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

7. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 gave guidance on how a court should exercise discretion and held that:

“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.

2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.

3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.

4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements.  The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.

5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion.  Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

See Also; Amal Hauliers Limited v Abdulnasir Abukar Hassan [2017] eKLR.

8. The application herein was filed one month after the delivery of the judgement. The applicant has also filed a notice of appeal on 29th September 2020, which is a manifestation of his intent to file an appeal. The application was therefore filed without inordinate delay.

9. On the aspect of substantial loss, I make reference to the case  of  Samvir Trustee Limited V Guardian Bank Limited [2007] eKLR  where it was held as follows;

“It is my humble view that for the applicant to obtain a stay of execution, it must satisfy this court that substantial loss would result if no stay is granted.  It is not enough to merely put forward allegations or assertion of substantial loss, there must be empirical or documentary evidence to support such contention.  It means the court will not consider mere assertions of substantial loss on the face value but the court in exercising its discretion would be guided by adequate and appropriate evidence of substantial loss….”

10. The facts of the case are that the 1st respondent in an act of intermeddling with the estate of her father’s estate sold land to the applicant herein. This court in its judgement held that the only recourse the applicant has was in a refund of the purchase price and therefore made orders to that effect. The respondents have averred that the applicant has never been in actual possession of the suit premises. The fact that the applicant was never given possession of the land is also captured in page 36 of the magistrate’s court judgment. It is also apparent that the suit land was not transferred to the applicant. Under these circumstances, I find that the applicant has not established the element of substantial loss.

11. I have scaled the merits of the appeal and the interest of the respondents to enjoy the fruits of their judgement. To this end, I have taken into account that the only substantive order made in this court’s judgment of 23. 9.2020 is the refund of the purchase price with interests. Hence an order of stay of the judgment would only have the effect of halting the payments to the applicant and nothing more. Such payments would certainly not render the appeal nugatory. Having made a pronouncement in the judgment of 23. 9.2020, I do not wish to make a determination of the likelihood of the success of the appeal at this stage. I also do not foresee the appeal being rendered nugatory.

12. In the end I do find that the application dated 6th October 2020 is not merited and the same is hereby dismissed with costs to the Respondents.

DATED, SIGNED AND DELIVERED AT MERU THIS 27TH DAY OF JANUARY, 2021

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 21. 10. 2020.  In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail.  They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE