Michael Kiplangat Cheruiyot v Joseph Kipkoech Korir [2020] KEELC 2946 (KLR)

REPUBLIC OF KENYA

IN  THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC 109 OF 2015

MICHAEL KIPLANGAT CHERUIYOT ...........................................PLAINTIFF

VERSUS

JOSEPH KIPKOECH KORIR.........................................................DEFENDANT

R U L I N G

1. The Court in this matter delivered judgment on 1st  October, 2019. The Court dismissed the plaintiff’s suit but allowed the defendant’s counterclaim. The plaintiff was ordered to vacate land parcel Nakuru /Ngongoreri/1026 within 30 days and in default execution to issue. The plaintiff  filed a Notice of  Appeal  on 11th  October 2019 signifying  his intention  to appeal  to the Court of Appeal  against  the entire judgment  delivered by Munyao, J on the said date.

2. The plaintiff  on  the 24th October 2019 filed a Notice  of Motion application  expressed  to be brought  under Sections 1,1A,3,3A of the Civil  Procedure Act, Order  42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. The application seeks the following substantive order under prayer  (3)  of the application.

(3)  That this Honourable  Court be pleased to issue  an order of stay of execution of the judgment  and consequential  orders and decree and orders delivered  by Hon. Justice Munyao Sila on 1st day of October, 2019 in  the Environment  and Land Court Civil Suit No.109 of 2015 pending  hearing  and determination of the intended Appeal.

3. The application was predicated on the grounds enumerated on  the face of the application and the affidavit sworn in support  thereof by  the plaintiff, Michael  Kiplangat Cheruiyot. The  plaintiff  inter alia  contends  the defendant /respondent  had illegally and fraudulently obtained title  to the land parcel  purportedly known as Nakuru /Ngongogeri/1026 and that  had on the strength  of forged documents laid claim to the plaintiff’s parcels of land  known as Nakuru/Ngongogeri/1040 by claiming that the plaintiff had trespassed and occupied his parcel of land thus leading to the institution of this suit by the plaintiff /applicant. That, if the defendant executed   the judgment  and the plaintiff  is evicted, the plaintiff would be dispossessed of his land which he had  occupied since he was allocated in 1997 . That  if the judgment  is executed  and the plaintiff evicted  from the suit land the appeal  would be rendered  nugatory and the plaintiff  would suffer prejudice and irreparable  damages/loss.

4. The defendant filed  a detailed replying  affidavit in response  to the plaintiff’s application and supporting  affidavit  in opposition  to the application. The defendant contended that the plaintiff’s  application  lacked  merit  as the intended  appeal  did not have any probability of succeeding;  that  the plaintiff  stands to suffer no loss / or damage  as it was  he (the defendant), who  was suffering  loss  and damage  for being kept  out of his land. The defendant insisted he had no claim or interest over the plaintiff’s land parcel Nakuru/Ngongongeri/1040and was only interested in his land parcel Nakuru/Ngongongeri/1026 which the plaintiff had unlawfully occupied. The plaintiff  averred that the  Survey Report produced in evidence  following a ground inspection ordered by the Court showed that the plaintiff  was occupying  land parcel 1026 and not land parcel 1040  as the plaintiff claimed.

5. The parties argued the application by way of written submissions. I have reviewed and considered the application, the affidavit in support and in opposition together with the submissions of the parties . I take  the following  view of the matter.

Order  42 Rule 6(1) (2) (a) (b)  provides for applications  for stay  of execution

(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.

6. An appeal does not operate as an automatic stay of execution but the Court appealed from may for sufficient cause order stay of execution of the decree or order. The jurisdiction to grant stay is thus discretionary. What would constitute sufficient cause is defendant on the facts and the circumstances of each case. While  under order 42 Rule  6 the  probability or chance of the appeal succeeding  is not  one of the conditions the  Court  appealed from is required  to consider, the court must  always  be cautious a losing party could engage  in delaying  justice to the successful  party by filing what would otherwise  constitute  a frivolous  appeal .It  is thus  essential  without  expressing itself  on the viability of the appeal  to take  a broad  view of  the matter in determining  who between the parties stand to suffer  greater loss if stay is granted and/or refused.

7. Under Order 42(6) 2(a) &(b)  the Court may, only  order  stay if  it is  satisfied that substantial loss may result to the applicant  unless  the order is made and in such eventuality may also order security  to be furnished  by the applicant  for the due performance of the decree should the decree ultimately be binding  on applicant. In the premises in the instant matter, the applicant has to demonstrate the substantial loss  he is likely  to suffer if the order for stay  is not granted. The evidence during the trial established there were indeed two parcels of land namely Nakuru /Ngongongeri/1026and1040. Defence witness 2, Benson  Njue Nyaga, a government surveyor, Nakuru  County  was emphatic  that the two parcels  of land indeed existed on the  ground  and were not adjacent  to each other. He stated the two parcels of land were roughly  2 Kms apart. As per his evidence the plaintiff was occupying land parcel Nakuru/Ngongongeri/1026 and not 1040 as he claimed. On  the face of this evidence which was not rebutted, the Court came to the finding  that indeed it was the  plaintiff who  was occupying  the defendant’s  land and hence  the consequential order  for the plaintiff  to vacate the land.

8. The primary issue  for determination in the suit  was where the physical  location of  land parcels 1026 and 1040  were on the ground. The Court in my view  properly accepted  the technical  evidence that was tendered by DW2 as contained  in the joint report by the district Land Registrar and District  Surveyor of Nakuru  dated 14th  July 2015 prepared  pursuant  to an order  of reference by the court  made on 18thJuly  2016. On the evidence, even  though  the plaintiff  may have an arguable  appeal, I am  not able  to hold that  the appeal  has high  chances of  succeeding.

9. The plaintiff does not himself reside on the suit property. In his evidence also corroborated by PW4 it was a worker  who lived on the plot and carried on cultivation thereon. The plaintiff asserted that he had no interest in land parcel 1026 but in land parcel 1040. The surveyor and the Land Registrar established that the two parcels of land existed on the Registry Index Map (RIM) and on the ground and were separate.  I am not persuaded the plaintiff has demonstrated he would suffer   any substantial loss if stay is not  granted. The plaintiff’s land parcel 1040 will not be interfered with and will be available for the plaintiff as he is the registered proprietor in the event the applicant is successful on appeal. It is not possible that two distinct parcels of land can sit on the same spot on the ground. The technical evidence availed a t the trial was clear on the point.

10. I am  not  satisfied  the conditions  for grant  if stay under Order  42 Rule 6 (1) &  (2)  and I accordingly dismiss the plaintiff’s Notice of Motion  dated 17th October 2019 with costs to the defendant.

11. Orders accordingly.

Ruling dated signed and delivered electronically at Nakuru this 30th Day of April 2020

J M MUTUNGI

JUDGE