Kenneth Kirema Munene & Martin Kirema Munene v Harriet Ntakira Matiri & Benjamin Nkando Munene [2021] KEELC 4632 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC CASE NO. 106 OF 2009

KENNETH KIREMA MUNENE..................................................1ST PLAINTIFF/RESPONDENT

MARTIN KIREMA MUNENE....................................................2ND PLAINTIFF/RESPONDENT

VERSUS

HARRIET NTAKIRA MATIRI.....................................................1ST DEFENDANT/APPLICANT

BENJAMIN NKANDO MUNENE................................................2ND DEFENDANT/APPLICANT

RULING

1. On 23/3/2020, the 1st defendant filed a notice of motion brought pursuant to the provisions  Section 1A, 1B, 3A of the Civil Procedure Act and Order 40 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules seeking the following orders;

a. Spent

b. That the order/decree issued by this court in its judgement dated 7/2/2020 and delivered on 10/2/2020 be stayed pending the hearingof theintended appeal.

c. That pending the hearing and determination of theapplication,this honorable court be pleased to issue an order of temporary injunction restraining the plaintiffs by themselves, their servants and/or agents and/or members of his family from evicting, entering or in way interfering with the applicants use and occupation of land reference No. ABOTHUGUCHI/KITHIRUNE/2150.

d. That pending the hearing and determination of the Intended appeal this honorable court be pleased to issue an order of temporary injunction restraining the plaintiffs by themselves, their servants and/or agents and/or members of his family from evicting, entering or in way interfering with the applicants use and occupation of land reference No. ABOTHGUCHI/KITHIRUNE/2150.

2. The application is premised on the grounds on the face of it and on the supporting affidavit and supplementary affidavit of the applicant Harriet Ntakira Matiri dated 11. 3.2020 and 13. 7.2020 respectively. The applicant avers that she was not satisfied with the judgement delivered herein and intends to appeal to the Court of Appeal to which she has served a notice of appeal. She added that the plaintiffs are in a hurry to evict her and take the suit land. That unless the court grants the orders sought, she will suffer irreparably and her appeal will be rendered nugatory.

3. She indicated that it was after the respondents were served with the present application and the court orders that they entered her land forcefully and damaged crops by spraying pesticides and cutting down trees. She reported the matter at Githongo police station vide OB 14/13/6/2020 for malicious damage.

4. The plaintiffs/ respondents have opposed the application vide the the replying affidavit and further affidavit of Kenneth Kirema Munene dated 2/7/2020 and 28/7/2020 respectively. He contends that the instant application seeks to mislead the court because the position on the ground is that the 2nd defendant and the beneficiaries of the estate of their father, Josephat Munene are the only ones in use and possession of the suit parcel. Therefore, the applicant has not been evicted because at all material times she has never been in possession of the suit land as she resides on parcel ABOTHUGUCHI/KITHIRUNE/2149.

5. I have carefully perused the application, affidavits, submissions and the record in its entirety and the issues to be determined are;

a. Whether to stay the judgement dated 7/2/2020 delivered on 10. 2.2020.

b. Whether to grant an order of temporary injunction pending the hearing and determination of the intended appeal?

6. Order 42 Rule 6 of the Civil Procedure Rules provides for stay of execution pending appeal as follows:

“(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2) 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. Thus for a stay of execution to be granted, an applicant must satisfy the conditions stated in rule 6 (2) set out above to the effect that:

(a) The application for stay must be made without unreasonable delay.

(b) The applicant must show that he will suffer substantial loss if the order of stay is not granted, and

(c) The applicant offers such security as the court may order to bind him to satisfy any ultimate orders the court may make.

8. I find that this application was filed on 23. 3. 2020, about one and a half months from the time the judgment was delivered. I therefore find that there was no delay in the institution of the current application.

9. On substantial loss, the applicant has in paragraph 8 of her supporting affidavit stated as follows “unless this court grants me the orders sought, I will be thrown out of the land and my property will be damaged”.  However, as pointed out in the Replying affidavit of Kenneth Kirema dated 2. 7.2020 in paragraphs 4 and 5, the applicant does not live in the suit parcel 2150, she stays on parcel 2149. Her daughters testified as follows during the hearing of the case;

-Salome Kanugu Matiri (DW2)“My mother lives in parcel 2149, she has not lived in parcel no. 2150”.

-Joyce Karimi“My mother lives in parcel 2149”.

-Susan Mpinda “My mother lives in parcel 2149”.

10. What emerged during the hearing of the case is that the applicant does not actually live on parcel 2150 though she cultivates on that land. In Wellington Lusweti Baraza & 47 others v Lands Limited & another [2015] eKLR, the court stated as follows on the issue of substantial loss;

“Other than cultivating on the land the Judgment debtors have not shown any substantial loss they are likely to suffer. I do find that living on the land and cultivating food crops is not sufficient reason for the grant of stay pending appeal. InCharles Wahome Sethi vs Angela Wairimu Gethi Court of Appeal Civil Appeal No. Nai 302 of 2007the court of Appeal held that It is not enough for the appellants to say that they reside or live on the suit land and that they will suffer substantial loss. The applicants must go further and show the substantial loss that the applicants should suffer ifthe respondents executes the decree in the suit against them”.

11. I find that the applicant has not established the element of substantial loss thus the order for stay of the judgment cannot be granted. It is also apparent that the applicant has not offered any security as stipulated under order 42 rule 6 of the Civil Procedure rules.

12. On the injunctive orders, it is apparent that the applicant has not approached the court with clean hands as she did not give the true account of the ground status quo as far as the suit land is concerned. The court had to peruse the entire proceedings to discern the status quo. The remedy of injunction has its roots in equity. A court of equity thus has the mandate to exercise its discretion in considering whether to grant the orders sought. In the instant case, this court has already established that the applicant’s place of abode is on parcel 2149 and not 2150. The applicant has neither met the criteria of substantial loss, nor has she established that her appeal shall be rendered nugatory if the prayers are not granted - see Patricia Njeri & 3 Others V National Museum of Kenya[2004] eKLR.

13. Against this background, I find no merits in the prayer for injunction.

14. In the final analysis, I find that the application filed on 23. 3.2020 is not merited. The same is dismissed with costs to the two respondents/plaintiffs.

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 19. 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