Kihuria Kamuri & Another v Jackson Maina Mwangi [2006] KECA 297 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL AT NAIROBI

CIVIL APPLICATION 112 OF 2005

KIHURIA KAMURI ……………………..........................................1ST APPLICANT

JANE WATURI MWAURA …….……..........................................…2ND APPLICANT

AND

JACKSON MAINA MWANGI ………..........................................…RESPONDENT

(An application to seek stay of execution pending appeal againstthe whole judgment of(Mr. Justice J. Mwera) dated 8th October,2002 and his subsequent decree issued on the 12th September, 2003

in

H.C.C.C. NO. 178 OF 1999)

***************

RULING OF THE COURT

The applicants Kihuria Kamuri and Jane Waturi Mwaura have applied by Notice of Motion dated 26th April 2005 under rule 5(2)(b) of the Court of Appeal Rules (hereinafter “the Rules”) for an order that execution of the judgment of Mr. Justice J. Mwera dated 8th October 2002 and the decree subsequent thereto issued on 12th December 2003 be stayed pending the hearing and determination of the appeal filed on 28th February 2005.

The grounds of the application assert that the appeal has good grounds of success and the appeal will be rendered nugatory if no stay is granted and that if stay is not granted the applicant will suffer substantial loss.

In a case such as this in which land is in issue and the evidence is sketchy as to exactly what payments were made to whom and for what, the less we say the better about the merits of the dispute at this stage when we are dealing only with the interlocutory application for an injunction pending the hearing of the intended appeal.

We consider that there are arguable issues in the intended appeal and that it is a case in which the interests of justice would best be met by granting the injunction sought.

Learned Counsel for the respondents Mr. S. Kingara argued that the appeal would not be rendered nugatory if the stay were refused because, he contended, the superior court had re-instated the property into the joint names of both the applicants and the respondents and that therefore the property could not be dealt with without both dealing with it so that, if we have understood his argument correctly, there was no danger of the applicant suffering from any unilateral action by the respondents pending the appeal.  On the assumption that this is correct it would appear that the proposed injunction would not cause any substantial loss to the respondents pending the appeal.

For the foregoing reasons we grant the injunction sought as prayed in the Motion and order that the execution of the judgment of Mwera J dated 8th October 2002 and resulting decree issued on 12th September 2003 be stayed pending the hearing and determination of the appeal filed on 28th February 2005.  The costs of this application shall be in the appeal being Civil Appeal No. 42 of 2005.

Dated and delivered at Nairobi this 24th  day of March, 2006.

P. K. TUNOI

………………………

JUDGE OF APPEAL

E. O. O’KUBASU

………………………

JUDGE OF APPEAL

W. S. DEVERELL

………………………

JUDGE OF APPEAL

I certify that this is

a true copy of the original.

DEPUTY REGISTRAR