Muthithi Investments Limited v Andrew S Kyendo & 22 others [2021] KEELC 4534 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC. CASE NO. 457 OF 2013

MUTHITHI INVESTMENTS LIMITED..........................PLAINTIFF

=VERSUS=

ANDREW S KYENDO & 22 OTHERS........................DEFENDANTS

RULING

1. This Court (Mutungi J) rendered a Judgment in this suit on 13/5/2014 and issued the following final orders:

i.That the defendant, their agents and/or servants are ordered to vacate and deliver vacant possession of the suit property L R NO 23917 Nairobi to the plaintiff within ninety (90) days from the date of this judgment failing which an eviction order to issue on application.

ii.A permanent injunction restraining the defendants by themselves, their agents, servants, tenants, licensees and/or any person whatsoever from being remaining entering in continuing in occupation, erecting, constructing of continuing with construction of any structures whatsoever on the plaintiff’s parcel of land, land reference No 23917 Nairobi be and is hereby issued.

iii.The plaintiff is awarded Kshs 1,000,000 as general damages for trespass together with interest at court rates from the date of judgment.

iv. Costs of the suit with interest at court rates.

2. More than five years later, the applicant, Nairobi City County Government, brought an application dated 11/1/2019 seeking, inter alia, an order of joinder to the suit, and an order setting aside the Judgment.  Through a ruling rendered on 20/5/2020, this Court (Eboso J) found the application unmerited and dismissed it.

3. Subsequent to that, the applicant, Nairobi City County Government, brought an application dated 3/6/2020, seeking stay of execution of the Judgment herein in the following verbatim terms:

1) That his motion be certified as urgent on account of the extreme urgency demonstrated and be heard ex parte in the first instance.

2) That there be a stay of execution or further execution ofthe judgment and decree of the court herein, in HCCC 457/2013 pending the Nairobi City County Government’s/Applicant’s intended appeal, until the hearing and determination of this application, or as the Court may direct.

3) That there be a stay of execution or further execution of the judgment and decree of the court herein, in HCC457/2013 pending the Nairobi City County Government’s/Applicant’s intended appeal, until the hearing and determination of the Applicant’s intended Appeal, or until such specified date as this Honourable Court may order.

4) That the costs of this application be provided for

4. The said application dated 3/6/2020 is the subject of this ruling.  It was supported by the affidavit of S G Mwangi sworn on 3/6/2020.  The application was canvassed through written submissions which I have duly considered.

5. The case of the applicant is that it has filed a notice of appeal against the ruling rendered on 20/5/2020 dismissing the applicant’s plea for joinder and setting aside orders.  It further contends that the decree holder in this suit failed to lay evidence before this court to demonstrate compliance with the provisions of Sections 152D, 152E, 152F, 152G and 152H of the Land Act while executing the decree in this suit.  Thirdly, it contends that the Chief Justice issued a Practice Notice stopping all executions. Fourthly, the applicant argues that it would be accosted with monumental humanitarian crisis if the judgment is executed.  Lastly, it contends that the intended appeal has overwhelming chances of success.

6. The decree-holder opposes the application.  The case of the decree holder is that the present application is fatally defective on the ground of res  judicata.  Secondly, the decree holder contends that there is no pending appeal against the judgment rendered by Mutungi J.  Thirdly, the decree-holder contends that the applicant lacks the locus standi to bring the present application.  Fourthly, the decree-holder argues that the ruling which the applicant seeks to challenge does not contain any positive order capable of stay.

7. I have considered the application, the response thereto, and the parties’ respective submissions.  I have also considered the relevant legal frameworks and jurisprudence.  The single question falling for determination in this application is whether the applicant has satisfied the criteria upon which a trial court exercises jurisdiction to grant an order of stay pending appeal.

8. Exercise of a trial court’s jurisdiction to grant an order of stay pending appeal is guided by the legal framework in Order 42 rule 6(2) which provides as follows:

“ 6 (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.”

9. In addition, our superior courts have severally pronounced clear principles which guide exercise of this jurisdiction.

10. The applicant in this application is not a party to this suit.  Its application for joinder was adjudged unmerited.  Secondly, the decree in this suit is not directed against the applicant.  The decree cannot be executed against the applicant.  The parties against whom the decree is directed exercised and exhausted their right of appeal a couple of years back.  Looking at the contextual background and circumstances of this application, I do not discern any iota of attempt by the applicant to satisfy the mandatory requirement of  “substantial loss” under Order 42 rule 6(2)

11. Similarly, there was no attempt by the applicant to satisfy the mandatory requirement for bringing the application without unreasonable delay.  I say so because, the judgment in this suit was rendered in 2014.  The present application which seeks a stay of execution of the said judgment was brought in June 2020, about six years later.  It was brought by a non-party long after the judgment debtors had exercised and exhausted their right of appeal.

12. Lastly, without satisfying the mandatory requirements of Order 42 rule 6(2), the matters raised in the application, such as non-compliance with certain provisions of the Land Act and issuance of Practice Notice by the Chief Justice cannot be a primary consideration in an application for an order of stay pending appeal.  It is not lost to the court that these matters are  being raised by an applicant who is not required to satisfy the decree in this suit.  Parties who are obligated to satisfy the decree have already exercised and exhausted their right of appeal.

13. Without saying much, this court’s finding, based on the above reasons, is that the applicant has not satisfied the criteria upon which a trial court exercises jurisdiction to grant an order of stay pending appeal.  Consequently, the notice of motion dated 3/6/2020 is dismissed for lack of merit.  The applicant shall bear costs of the application.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 27TH DAY OF JANUARY 2021.

B  M EBOSO

JUDGE

In the presence of:-

Mr Harriosn Kinyanjui for the Applicant

Mr Justus Obuya and Ms Sagini for the Plaintiff

June Nafula  - Court Clerk