Mbuthia (Suing in her capacity as administrator of the Estate of Mbuthia Mukuru) & another v Osumo (Suing in her capacity as administrator of the Estate of James Gesacho) & 4 others [2023] KEELC 21280 (KLR)

Mbuthia (Suing in her capacity as administrator of the Estate of Mbuthia Mukuru) & another v Osumo (Suing in her capacity as administrator of the Estate of James Gesacho) & 4 others (Environment & Land Case 149 of 2012) [2023] KEELC 21280 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21280 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 149 of 2012

A Ombwayo, J

November 3, 2023

Between

Jemimah Waruguru Mbuthia (Suing In Her Capacity As Administrator Of The Estate Of Mbuthia Mukuru)

1st Plaintiff

Kiplangat Ngetich

2nd Plaintiff

and

Nyanchama Osumo (Suing in her capacity as administrator of the Estate of James Gesacho)

1st Defendant

Rosemary Wanjiru

2nd Defendant

Kalenjin Enterprises

3rd Defendant

Land Registrar, Nakuru

4th Defendant

Job Oyunge

5th Defendant

Ruling

1. Nyanchama Osumo, (hereinafter referred to as the applicant) suing on behalf of the estate of James Gesacho has come to this court praying for an order of stay of execution of the judgment and orders made on 29th June 2023 pending the hearing and determination of the intended appeal.

2. The application is based on the facts that the applicant is dissatisfied with the judgment and orders made herein on 29th June, 2023 and is appealing against the same. The applicant has filed notice of Appeal and has requested for proceedings which are yet to be typed and supplied.

3. The applicant claims to have an arguable appeal and if the said stay of execution is not granted the applicants appeal will be rendered nugatory and she will suffer irreparable damages.

4. The applicant contends that unless this application is granted, the Respondent will execute the said judgment and orders and execution will be carried out on the Applicants/intended appellant from Land Parcel No. Nakuru Municipality Block 29/661.

5. Substantial loss shall result to the applicant unless the orders sought are granted and the same be allowed in the interest of equality and justice.

6. The applicant believes that is good to maintain status quo herein pending the hearing and determination of the said Appeal.

7. The Applicant is staying on the said land and has equally built rental houses on the said land and will be prejudiced if eviction will be carried out and the appeal decided otherwise.

8. The applicant states that this application has been made without any unreasonable delay.

9. In the supporting affidavit the applicant states that she is the widow of the 1st defendant herein and that she legally took over this matter after his demise as required by the law.

10. She gave evidence herein as to how her late husband purchased this land and ultimate transfer to his name by the 3rd defendant herein who were the original owners of the said land.

11. She states that after purchasing from a former member, her late husband's name was properly entered into the register of the 3rd defendant as the owner of Plot No. 661.

12. She claims to have produced all the documents showing the chronological history of the said land and how her late husband acquired the same. That the Court herein rendered its judgment on 29th June, 2023 and found that it is the 1st Plaintiff who is the owner and the court proceeded to order eviction of her family from the said land. She stays on the said land with her entire family and they have nowhere to go. That equally there are rental house which she collects rent which sustains her family. That unless this Honorable Court intervenes expeditiously, then the 1st Plaintiff will embark on execution at any time.

13. That this is because the 1st Defendant has already sent people to the ground who went and said that the land will be sold to them as soon as she is evicted and they surveyed the said land.

14. She stands to suffer irreparable loss should execution proceed since this is the only property left to them by her late husband and if evicted, the family will be left homeless.

15. She is willing to comply with the conditions the Court will put such as and that she will never try to dispose the property and will maintain the status quo until the appeal is heard and determined.

16. She has made this application without any undue delay.

17. That in view of the substantial loss, she stands to suffer and she earnestly prays that execution of the said judgment and order and decree emanating therefrom be stayed forthwith.

18. The respondent filed grounds of opposition whose import is that the application is fatally defective, bad in law, a non-starter, incompetent, frivolous, vexatious and or otherwise an abuse of the due process of the law. The application is supported by an undated affidavit which expressly violates Section 5 of the Oaths and Statutory Provisions Act,

19. No duly filed and served notice of appeal has been attached to the said application to show that the applicant has either appealed or is keen on pursuing an appeal.

20. The appellant has not offered any form of security as required under order 42 rule 6 (2) of the Civil Procedure Rules. There has been undue delay in bringing the said application.

21. The respondent contends that there is no proof that the Applicant has ever paid or requested for proceedings as the letter attached thereto is not from her advocates.

22. The applicant has not indicated what prejudice she'll suffer if stay is not granted as the court granted her 90 days to vacate the premises. The application as framed is aimed at prolonging litigation thus denying the Plaintiffs/Respondent the fruits of their judgment. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided for under order 42 rule 6(2) of the Civil Procedure Rules which provides: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.

23. Further to the above, stay may only be granted for sufficient cause and that the Court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in sections 1A and 1B of the Civil Procedure Act, the Court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions.

24. Section 1A(2) of the Civil Procedure Act provides that the Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective while under section 1B some of the aims of the said objectives are the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of the available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.

25. Therefore, an applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. As to what substantial loss is, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that:"No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

26. The court, in RWW v EKW [2019] eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:"The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

27. I have considered the application and grounds of opposition and do find that the same was made without unreasonable delay before the expiry of the 90 days given by the court.

28. On substantial loss this court finds that if the 1st defendant is evicted and succeeds on appeal the appeal would have been rendered nugatory as it will remain an academic exercise. Moreover, I do believe that the appellant will suffer a substantial loss if evicted by the respondent and they eventually succeed on appeal as the disputed plot is her family home.

29. This court is inclined to grant the applicant stay of execution pending appeal on conditions that the appellant deposits the title deed in respect of the suit property in court and security for costs of Ksh200,000/= costs of the application in the appeal.

RULING DATED SIGNED AND DELIVERED VIA EMAIL AT NAKURU THIS 3RD DAY OF NOVEMBER 2023A .O. OMBWAYOJUDGE