Mercy Wanjiru Igogo, George Munyinyi Igogo, Pauline Njoki Igogo, Rosemary Wambui & Hannah Njambi Ndiro v Francis Thuku Gakumo, Stephenson Karugi Kago, Njoki Juma, Michael Ndungi & Robert Wangendo Ndiro;Joseph Gitau Njoki (Interested Party) [2021] KEELC 4459 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE NO 1995 OF 1998

MERCY WANJIRU IGOGO.............................................................1ST PLAINTIFF

GEORGE MUNYINYI IGOGO.......................................................2ND PLAINTIFF

PAULINE NJOKI IGOGO................................................................3RD PLAINTIFF

ROSEMARY WAMBUI.....................................................................4TH PLAINTIFF

HANNAH NJAMBI NDIRO..............................................................5TH PLAINTIFF

=VERSUS=

FRANCIS THUKU GAKUMO.......................................................1ST DEFENDANT

STEPHENSON KARUGI KAGO..................................................2ND DEFENDANT

NJOKI JUMA...................................................................................3RD DEFENDANT

MICHAEL NDUNGI........................................................................4TH DEFENDANT

ROBERT WANGENDO NDIRO....................................................5TH DEFENDANT

JOSEPH GITAU NJOKI....................................INTENDED INTERESTED PARTY

RULING

1. This is the Notice of Motion dated 18th August 2020 brought pursuant to section 1A, 1B and 3A of the Civil Procedure Act and Order 22 Rule 22, and Order 42 Rule 6 of the Civil Procedure Rules and all enabling provisions of the law.

2. It seeks orders:-

(a)  Spent.

(b)  Spent.

(c)   Spent.

(d)   That the court be pleased to grant a stay of execution in respect of the judgment herein dated 11th June, 2020 pending hearing and determination of the Applicants intended appeal against the said judgement delivered on 11th June, 2020.

(e)  That costs of this application be provided for.

(f)  Any other orders that meets the end of justice.

3. The grounds are on the face of the application and are set out in paragraph (1) to (6).

4. The application is supported by the affidavit of Pauline Njoki Igogo, the 3rd plaintiff/applicant sworn on the 18th August 2020.

5. The application is opposed. There is a replying affidavit sworn by Francis Thuku Gakumo, the 1st defendant/respondent sworn on the 13th September 2020 and that of Stephen Karugi Kago, the 2nd defendant/respondent sworn on the 16th November 2020.

6. The application was canvassed by oral submissions.

7. I have considered the notice of motion, the affidavits in support and the annexures.  I have also considered the replying affidavits, the oral submissions and the authorities cited. The issue for determination are:-

(i)  Whether the plaintiffs’/applicants’ application meets the threshold for grant of orders of stay of execution pending appeal.

(ii)  Who should bear costs?

8. The principles guiding the grant of orders of stay of execution pending appeal are well settled.  Order 42 rule 6(2) of the Civil Procedure Rules provides that:-

“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.”

9. It is clear from the above provisions that for an order of stay of execution pending appeal to be granted, specific conditions must be met by the applicants.

10. I have considered the notice of motion herein and I find that it has been brought two (2) months after judgment.  I find that the delay has been explained by the reasons advanced in the affidavit of Kibe Mungai Advocate sworn on the 18th August 2020.

11. The plaintiffs’/applicants’ claim to have resided on the suit property since birth.  On the other hand  it is not in dispute that the 1st and 2nd defendants purchased the suit property at a public auction conducted by M/S C. B Mistri Auctioneers on 8th November 1990. The said sale has not been challenged. The 1st defendant did explain in detail of what led to the exchange of parcel numbers between them and the 3rd defendant.  The said evidence was not challenged by the plaintiffs.  The plaintiffs also failed to prove there was any fraud or collusion between the 1st, 2nd defendants and the 3rd defendants.

12. I find that the plaintiffs/applicants have failed to demonstrate that they will suffer substantial loss if these orders are not granted.  The sale by public auction was conducted in 1990. The 1st and 2nd defendants/respondents ought to be left to enjoy the fruits of their judgment.

13. In the case of Feisal Amin Jan Mohammed t/a Dunvia Forwarders vs Shami Trading Co. Ltd [2014] eKLR Kasango J stated as follows:-

“It is trite law therefore that a stay of execution order is generally granted if the applicant has successfully demonstrated that a substantial loss that may result to him unless the order is made, that the application is made without unreasonable delay and that the applicant has offered proper security”.

I am guided by the above authority.

14. I have considered the circumstances of this case. I find that the plaintiffs/applicants application does not meet the requirements as set under order 42 rule 6(2) of the Civil Procedure Rules.

15. In conclusion I find no merit in this application and the same is dismissed with costs to the 1st and 2nd defendants/respondents.

It is so ordered.

Dated, signed and delivered in Nairobi on this 28th day of January 2021.

..........................

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Mwathe advocate for the plaintiffs

Mr. Kariu advocate for the 1st and 2nd defendants

Phyllis - Court Assistant