Ndungu v Thuku [2023] KEELC 16748 (KLR)

Ndungu v Thuku (Environment & Land Case 18 of 2019) [2023] KEELC 16748 (KLR) (6 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16748 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case 18 of 2019

BM Eboso, J

March 6, 2023

Between

Samuel Kiruthi Ndungu

Appellant

and

Mary Gathoni Thuku

Respondent

Ruling

1. Judgment in this appeal was rendered on 9/6/2022. This court issued the following disposal orders:“27. The result is that, this appeal is allowed with costs. The judgment and decree of the Senior Resident Magistrate Court in Thika CMC E & L Case Number 22 of 2013 is set aside and is substituted with the following orders:

a)An order directing the Land Registrar to cancel the subsequent title procured by the plaintiff together with all the related entries in the parcel register.b)An order directing the plaintiff in the said suit to facilitate conveyance of the suit property to the defendant within 60 days and in default the relevant officer at Thika Chief Magistrate Court shall execute all documents necessary for conveyance of the land to the defendant.c)An order dismissing the plaintiff’s claim.d)An order awarding the defendant costs of the primary suit and the counterclaim.”

2. About five months later, on October 31, 2022, Mary Gathoni Thuku, the respondent in this appeal, brought an application dated October 31, 2022, seeking an order of stay of execution pending the hearing and determination of an intended appeal at the Court of Appeal. The said application is the subject of this ruling.

3. The application was supported by the respondent’s supporting affidavit and supplementary affidavit sworn on October 31, 2022 and 24/1/2023 respectively. It was canvassed through written submissions dated 31/10/22, filed by M/s Ng’ang’a Ngigi & Co Advocates.

4. The application was opposed through an affidavit sworn on December 21, 2022 by Anna Wanjiku Kiruthi who described herself as the adminstratrix of the estate of Samuel Kiruthi, and written submissions dated 5/2/2023, filed by M/s Rapando & Odunga Advocates.

5. The case of the applicant is that she is dissatisfied with the Judgment of this court and she has filed and served a notice of appeal intimating her intention to challenge the said Judgment in the Court of Appeal. She contends that she has not filed the record of appeal because she has not been supplied with certified copies of proceedings. She is apprehensive that unless the stay order is granted, the Judgment of this court will be executed and her appeal will be rendered nugatory. She adds that she never instructed the firm of Njaramba & Co Advocates to file a notice of change of advocates in this appeal.

6. The case of the respondent [the appellant in this appeal] in the application is that the applicant has failed to comply with the decree of this court. The respondent further contends that the applicant has not demonstrated what substantial loss she would suffer, adding that the late Samuel Kiruthi Ndungu, together with his family, have been in occupation of the suit property since 2001 and have fully developed the suit property. The respondent adds that the applicant has not satisfied the requirement for security. The respondent further contends that the delay in bringing the application is inordinate and has not been explained.

7. The court has considered the application, the response to the application, and the parties’ respective submissions. The court has also considered the relevant legal framework and the applicable jurisprudential principles. The single issue to be determined in the application is whether the applicant has satisfied the criteria upon which jurisdiction to grant an order of stay of execution pending disposal of an appeal is exercised. This court exercised appellate jurisdiction in this matter.

8. The court’s jurisdiction to grant an order of stay pending a second appeal is discretionary. Exercise of that discretionary jurisdiction is guided by the principles spelt out under Order 42 rule 6(1) and (2) of theCivil Procedure Rules which provides as follows:“6(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.”

9. In an appeal where the subject matter of the appeal is land, the purpose of a stay order is to preserve the land [the substratum of the appeal] so that should the appeal succeed, the orders of the second appellate court are not rendered nugatory [see Consolidated Marine v Nampijja & another; Civil Application No 93 of 1989 [Nairobi]. Secondly, a party seeking a stay order in this court pending the hearing and determination of an appeal in the Court of Appeal is expected to satisfy the requirements of Order 42 rule 6 (2) of the Civil Procedure Rules. Put differently, the applicant is expected to demonstrate: (i) a likeliness of her suffering substantial loss in the event that the stay order is not granted; (ii) her preparedness to provide appropriate security for the due performance of the decree; and (iii) her compliance with the requirement for bringing the application timeously.

10. Further, where the application is brought after the expiry of the prescribed period for filing a notice of appeal, the applicant is expected to demonstrate full compliance with the law in terms of filing and serving the notice of appeal within the prescribed period.

11. In the appeal leading to the impugned Judgment, the court found that the late Samuel Kiruthi Ndungu had proved, on a balance of probabilities, that he purchased the suit property from the applicant in 2001 and that the applicant gave him the original title and allowed him to develop the land between 2001 and 2002 and enjoy possession of the land. The court also found that in February 2013, the applicant illegally procured a parallel title to the suit property after which she initiated the suit leading to this appeal. As things stood at the time of rendering the impugned Judgment, the two parties to this appeal were holding parallel titles relating to the suit property. Both titles were in the name of the applicant. There was, however, no contestation about the fact that the appellant had developed the suit property and was in possession of the suit property. His estate is still in possession of the suit property.

12. The disposal orders in the impugned Judgment required the applicant to convey the title to the appellant within 60 days. In default, the relevant officer in the Chief Magistrate Court was to execute the necessary conveyance documents.

13. The applicant has not explained why she never brought the application for a stay order within the 60 days. She has not disclosed whether or not she complied with the Judgment of the court. This application was brought on October 31, 2022, a period of almost five months from the date when the impugned Judgment was rendered. She has not demonstrated to the court that the land is now registered in the name of the deceased and that she is exposed to substantial loss in the event that a stay order is not granted. She has said nothing about security for the due performance of the decree of this court.

14. Given the above circumstances, the court will allow the disposal order in the Judgment in this appeal to be executed by the trial court in terms of cancellation of the second title deed procured by the applicant and in terms of registering the suit property in the namse of the administrators of the estate of the late Samuel Kiruthi Ndungu. However, once that registration is effected, there will be a stay of further dealings in the parcel register relating to the suit property for a period of 15 months from today. The stay order will lapse on expiry of 15 months from today.

15. In the end, Mary Gathoni Thuku’s application dated October 31, 2022 is disposed in the following terms:

a.Upon the Chief Magistrate Court executing the disposal orders in the Judgment in this appeal, there shall be a stay of further dealings in the land register relating to land parcel number Ruiru/Ruiru East Block 2/2317 for a period of 15 months from today, 6/3/2023. b.Unless the above order is extended by the Court of Appeal, it shall lapse upon expiry of 15 months from today 6/3/2023. c.Costs of the application shall be borne by the applicant, Mary Gathoni Thuku.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 6TH DAY OF MARCH 2023B M EBOSOJUDGEIn the Presence of: -Ms Wainaina holding brief for Mr Ngige for the ApplicantMr Odunga for the RespondentCourt Assistant: Osodo