Njuguna Ngaruiya & Margaret Kabura Ngayuiya v Victor Katana & 36 others [2017] KEHC 7303 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC CASE NO. 607 OF 2010

NJUGUNA NGARUIYA

MARGARET KABURA NGAYUIYA………...…...…..PLAINTIFFS

VERSUS

VICTOR KATANA & 36 OTHERS….……….....RESPONDENTS

RULING

Through their application dated 4th July 2014, the Applicants seek to have the orders of stay of execution issued on 30th March, 2012 set aside on the grounds that the 25th defendant has not filed her appeal for over two years since the stay orders were granted pending appeal and, in addition, that the 25th defendant continues to occupy the plaintiff’s premises without paying rent on account of the stay orders granted. The plaintiff further contends that the 25th defendant’s continued delay in filing the appeal is prejudicial to the plaintiff.  The application is supported by the joint affidavit sworn by Njuguna Ngaruiya and Margaret Kabura Nyaga on 4th July, 2014.  The Applicants are the joint administrators of the estate of the late Naomi Kabura who owns L.R. No. 209/2389/72, being a residential building comprising flats one of which is occupied by the 25th Defendant (“the Suit Property”).

Parties filed and relied on their Written Submissions.

The background to this case is that through a ruling delivered on 21st November, 2011, the Court struck out the defence of the 25th Defendant and made an order that she was to be evicted from the Suit Property.  Being aggrieved by that ruling, the 25th Defendant filed a Notice of Appeal and requested for proceedings to enable her file the appeal vide the letter dated 23rd November, 2011.  The 25th Defendant also applied for stay of execution which was granted on 30th March, 2012.  To date the 25th defendant has not filed the appeal.  The Applicant urged that the 25th defendant continues to occupy the Suit Property without paying rent as a result of the stay order granted by the court thus making the Estate of the late Naomi Kabura lose income.  Further, that the 25th Defendant is not keen to file or pursue the appeal since she is enjoying the stay orders. The Applicant seeks to have the stay orders vacated so that the estate of the late Naomi Kabura can enjoy the fruits of the court ruling made on 21st Novembe, 2011 in its favour.

The 25th defendant relied on the Affidavit she swore on 22nd December, 2013 in opposing the application. She argues that she has not received a letter from the Deputy Registrar confirming that the certified proceedings are ready for collection. She further urges that she has lived on the Suit Property most of her life and that this is the only place she calls home.

Having considered the oral and written submissions and having looked at the previous rulings delivered on 21st November, 2011 and 30th March, 2012 the court notes that the 25th Defendant has not taken any steps to file its appeal after she lodged her Notice of Appeal.  No evidence was placed before the court to show what efforts the 25th defendant had made to progress her appeal.  It is noteworthy that the 25th Defendant’s letter applying for certified copies of the pleadings, proceedings and ruling was filed in Court on 23rd November, 2011, which is almost six years ago.  The normal practice is that a party who wishes to appeal makes a down payment of the court fees before the proceedings can be typed.  It is also incumbent upon a party seeking proceedings to follow up with the court registry to ensure that the proceedings are typed and the order certified to enable it prepare and file its record of appeal timeously.

The Applicant relied on the case of Reuben Indiatsi  Nasibi –v- Alfred Machayo and 2 others [2012] eKLRin which the court while dealing with a similar scenario made the following observation: -

“The other issue is that for the last six or so years the 1st respondent has been baby-sitting his notice of appeal without taking steps to ensure that the appeal is lodged.  Whereas the 1st respondent contends that the proceedings are yet to be supplied, there is no indication of the steps taken by the 1st respondent to expedite the process. In the absence of such evidence one cannot help agreeing with the applicant that the 1st respondent has no interest in pursuing the appeal. Where a party has been granted an indulgence in form of a stay of execution order to enable him pursue an appeal, it behoves him to take all the necessary steps to ensure that the said appeal is expedited.  He should not just sit back and twiddle his thumbs under the pretext that he is awaiting proceedings.  The exercise of judicial discretion in favour of a party places a corresponding duty on the party to avoid abuse of the said orders……”

I agree with the court’s finding above that when judicial discretion is exercised in favour of a party and it is granted orders, that party has a duty to avoid abuse of the said orders.

In this case it is clear that the 25th Defendant has not been diligent. She has not taken any steps to expedite the process of obtaining typed proceedings so that she can pursue her appeal. The court agrees with the Applicant that the 25th Defendant is happy to enjoy the orders of stay she was granted without making any efforts to pursue her appeal yet the orders were granted pending appeal.

The court therefore sets aside the orders made on 30th March, 2012 and the stay is discharged.  The costs of this application shall be borne by the 25th Defendant.

Dated and delivered at Nairobi this 9th day of March, 2017.

K. BOR

JUDGE

In the presence of: -

Ms. Kamau - for the Plaintiffs/Applicants

Mrs. Njiru- for the 25th Defendant/Respondent

V. Owuor- Court Assistant