Kiambuthi v Gitonga & 4 others; Kiambuthi (Interested Party) [2023] KEELC 17850 (KLR)

Kiambuthi v Gitonga & 4 others; Kiambuthi (Interested Party) (Environment & Land Case 3 of 2020) [2023] KEELC 17850 (KLR) (8 June 2023) (Ruling)

Neutral citation: [2023] KEELC 17850 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case 3 of 2020

JG Kemei, J

June 8, 2023

Between

Samuel Ng’ang’a Kiambuthi

Plaintiff

and

Eric Munene Gitonga

1st Defendant

Clement Gichohi Kungu

2nd Defendant

Christopher Waruingi

3rd Defendant

Wilson Mbuki

4th Defendant

Samuel Macharia

5th Defendant

and

Naomi Kabara Kiambuthi

Interested Party

Ruling

1. The application dated the February 17, 2023 is filed by the applicants/defendants seeking temporary stay of execution of the orders delivered on the February 13, 2023. In particular, the orders holding the 1st and 4th defendants in contempt and requiring them to purge the contempt in default show cause why they should not be punished for contempt. interalia, the orders sought are as follows;i.That due to the urgency of this matter service be dispensed with in the first instance.ii.That there be temporary stay of execution of the orders made herein on February 13, 2023. a.Permitting the plaintiff to amend his plaint and giving timelines within which, the parties shall be required to file and exchange amended pleadings.b.Holding the 1st and 4th defendants to be in contempt of court and ordering that the two defendants purge the said contempt within 15 days and appear in court on March 6, 2023 to either confirm that they have purged the contempt or otherwise show cause why they should not be committed to prison to the said contempt until this application is heard interpartes.i.That there be a stay of the order made herein on February 17, 2023 granting leave to the plaintiff to amend his plaint and also finding the 1st and 4th defendants to be contempt of court pending appeal.ii.That this honourable court do make such orders as will meet the ends of justice.

2. The applicants aver that they are aggrieved by the said orders and have filed an appeal against the said ruling and if the orders are not granted the said appeal shall be rendered nugatory.

3The application is supported by the affidavit of Eric Munene Gitonga sworn on the February 17, 2023 where he reiterated the grounds of the motion and added that their appeal has good chances of success and that unless the orders are granted they stand to lose their liberty.

4Equally the application is supported by the affidavit of John Kiarie Njuguna, an advocate acting for the defendants/applicants who insisted that he filed written submissions on the September 16, 2022 and wondered who could have removed them from the record and why. He is apprehensive that because of this his clients are likely stop trusting him.

5Pursuant to the orders of the court issued on the February 13, 2023 the plaintiffs have complied and filed an amended plaint on the February 20, 2023 while the defendants filed their amended joint defence on the March 24, 2023.

6The court finds that this dispenses the orders sought in para 2 (a) and part of para 3 with respect to the amendment of pleadings on the ground that the parties have complied with the court orders and there remains nothing to stay.

7The plaintiff respondent opposed the motion vide his RA filed on the March 20, 2023 wherein he deponed that the application is unsupported and incompetent and does not warrant grant of stay of execution. They have not demonstrated any substance in the entire application nor met the conditions for stay. That the prayer for stay of amendment of a plaint already overtaken by events since both parties have complied and filed amended pleadings. He urged the court to dismiss the application.

8The applicants filed written submission on the April 6, 2023 which I have read and considered. I have not sighted any written submissions by the respondent/plaintiff.

9The main issue for determination is whether the application is merited.

10The legal provisions for stay of execution are anchored in order 42 rule 6 of theCivil Procedure Rules that;“6. Stay in case of appeal [order 42, rule 6](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 sub rule (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.”

11. It is trite that for an applicant to succeed in an application of this nature, one must establish three conditions namely; establishment of substantial loss upon timely filing of the application and the furnishing of security.

12. This court is guided by the decision in the case of Butt v Rent Restriction Tribunal(1982) KLR 417 where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal namely; -a.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.b.The general principal 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.c.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.d.The court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.

13. In this case the applicants have submitted that they are not in contempt of the court orders since they have not been constructing on the land since the orders were issued and as such they have no way of purging the contempt. The 1st and 4th defendants were found guilty of contempt and the court allowed them time to purge the contempt but being aggrieved by the said orders have filed an appeal. They seek that the purging of the contempt is stayed because they are innocent of any construction on the land and are apprehensive that because they have not purged the contempt, they shall be committed to civil jail. I find that the applicants have established substantial loss which is the loss of their personal freedom.

14. The court finds that the application was filed timeously and in the upshot the application is allowed.

15. I make no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 8TH DAY OF JUNE, 2023 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Kirwa for PlaintiffNjuguna for 1st – 5th DefendantsNjugi for Interested PartyCourt Assistants – Kevin & Lilian