Mukuba v Gitonga [2022] KEHC 10174 (KLR)

Mukuba v Gitonga (Civil Appeal 34 of 2022) [2022] KEHC 10174 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10174 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal 34 of 2022

EM Muriithi, J

July 7, 2022

Between

Lucy Mukuba

Appellant

and

Peter Gitonga

Respondent

Ruling

[1]By Notice of Motion dated 9/3/2022 the Appellant seeks specific relief that the court orders stay of “the eviction of the applicant from L.R No. Nkuene/Mitunguu/1116 pending hearing and determination of the appeal.

[2]The application is founded on the grounds set out in the application that:a.The respondent is moving with speed to demolish applicant’s multi million building in which the applicant dwells and she has no other home.b.If execution take place the applicant will suffer irreparable loss and this application and appeal will be rendered nugatory.

[3]The facts upon which the application is based are set out primarily, in paragraphs 3 and 4 of the Supporting Affidavit of Lucy Mukuba of 9/3/2022 as follows:-“3)That I believe my appeal has high chances of success for the following reasons:-a)The respondents land neighbor my land and the house complained of is built on the boundary.b)My request to have a government surveyor to visit the locus quo and place the boundary between my house and the respondent land have been rejected.c)The house is not on the respondent’s land.4)That therefore if my dwelling house is brought down and I eventually win the appeal will have suffered irreparable loss and damage.”

[4]The Memorandum of Appeal dated 9/3/2022 sets out in appellants’ grounds of appeal as follows:-1. The Learned Magistrate erred in Law and in facts in failing to consider the appellants opposition before allowing the application by the respondent.

2. The Learned Magistrate erred in law and in facts in failing to find that it was necessary for a surveyor to mark the exact position of the house in respect to the respondents L.R No. Nkuene/mitunguu/1116.

3. The Learned Magistrate erred in law in deciding the entire application in biasness and against the weight of evidence.

[5]The Respondent vehemently opposes the application by a Replying Affidavit sworn on 14/3/2022 in which he deponed that: the case was heard and determined on merit by the trial court which pronounced its judgment on 9/7/2020; there was no appeal ever filed against the decree of the court over 1 ½ years later; the appellant instead colluded with her son to file a separate suit Nkubu ELC No. E32 of 2021 to which the respondent had filed a defence, that after the expiry of reasonable time for the appellant to voluntarily remove the building on the respondents’ land, the respondent applied to court to be allowed to demolish with security provided by OCS Mitunguu Police Station; that the appellant failed to appeal the decree in the main suit and in seeking to appeal from the order given to effect or execute the decree is a clear case of buying time and delaying the implementation of the decree; “that the demolition is to be done only to the extent of intrusion upon land reference No. Nkuene/mitunguu/1116 which belongs to the Respondent;” that the orders are not for eviction |perse as claimed and the issue of having nowhere to go does not arise at all as the demolition will leave the rest of the homestead intact and undisturbed; and that the appellant had not paid costs of Ksh. 151, 065 ordered by the trial court and has come to court with unclean hands.

Determination [6]The issue before the court is whether it will stay execution of the trial court order for demolition pending the appeal herein.

[7]The court has considered the application and the submissions by counsel for the parties. There is no appeal from the decree of the trial court. What is sought to be appealed from is an order from decision to allow with supervision by the police, of the demolition of parts of the appellant’s house said to be constructed on the Respondent’s land. Appeal from order on execution under Order 22 is allowed as of right only with respect to the rules set out in Order 43 Rule 1 (k) of the Civil Procedure Rulesas follows:“Appeals from Orders [Order 43, rule 1. (1)An appeal shall lie as of right from the following Orders and rules under the provisions of section 75(1)(h) of the Act—(k)Order 22, rules 25, 57, 61(3) and 73 (orders in execution).”

[8]Rule 29 of Order 22 of the Civil Procedure Rules on which the application resulting in the order for police assistance in demolition of the appellant’s encroaching constructions, as asserted in the Submissions of the Counsel for the Appellant, is not one for which appeal lies as of right.

[9]No leave has been obtained for the present appeal. The Court does not consider that there is not a competent appeal capable of being launched against the order of the trial court, and upon which an application of stay pending appeal may be moved. However, in the interests of justice so that more harm is not caused than is sought to be avoided by the demolition of the appellant’s house constructed on the respondent’s land, the court will consider the application on the merits.

[10]The court particularly notes the submissions by counsel for the, appellant that:-“The applicant’s opposition to the order for demolition of this home is based on the facts that the surveyor has not established the extent as to where the house has encroached the respondent’s land or not. It is the intention of the applicant that once that is established, she will move the house on her own volition. Your Lordship under Article 159 of the Constitution, the court has powers to order for the surveyor to revisit the locus quo and establish the boundaries before any other action can be done. To that extent, we submit that the quest for an order for stay is merited.”

[11]What is not permissible is the use of process of the court to delay and avoid the execution of lawful court process. That is a clear abuse of the process of the court. The court cannot allow the appellant to regurgitate her case by the present proceedings and stall the enjoyment of the fruits of judgment by the Respondent.

[12]There is, however, merit in the proposition that to determine the exact extent of the encroachment a Government Surveyor should demarcate the boundary so that the appellant, removes the encroachment of the respondents demolishes it in default of the removal by the appellant with reasonable time.

[13]This court considers that the exercise of the mapping and determination of the boundary may be completed within 14 days. The appellant will then remove any encroachment within 7 days after the determination. The whole exercise shall be supervised by counsel of the parties in accordance with their duty under section 1A (3) of the Civil Procedure Act as follows:“3. A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court”.

[14]The Appellant/Applicant shall pay for the Government Surveyor’s costs.

Orders [15]Accordingly, for the reasons set out above, the Court directs that the Appellant shall pay for the costs of the Government Surveyor to attend within fourteen (14) days the disputed site and demarcate the boundary on parcel of land No. Nkuene/mitunguu/1116 whereupon the appellant shall remove any encroaching buildings or construction on the Respondent’s parcel of land aforesaid within the next seven (7) days, and in default thereof the respondent shall be at liberty, with the assistance of the relevant Officer Commanding Police Station Mitunguu Police Station to demolish the buildings and or constructions.

[16]The advocates for the parties shall in accordance with their duty under section 1A (3) of the Civil Procedure Act assist the court in enforcing the order.

[17]The matter shall be mentioned for final directions on 28/7/2022.

[18]There shall be no order as to costs.Order accordingly.

DATED AND DELIVERED ON THIS 7TH DAY OF JULY, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S L. Kimathi & CO. Advocates for the AppellantM/S Leonard Ondari & CO Advocates for the Respondent.