Ochieng (Suing on his Own Behalf and on Behalf of:) & 112 others v Kabarak Farm Ltd & 19 others; County Government of Trans Nzoia & 7 others (Interested Parties) [2022] KEELC 2982 (KLR)

Ochieng (Suing on his Own Behalf and on Behalf of:) & 112 others v Kabarak Farm Ltd & 19 others; County Government of Trans Nzoia & 7 others (Interested Parties) (Environment & Land Petition 3 of 2017) [2022] KEELC 2982 (KLR) (21 June 2022) (Ruling)

Neutral citation: [2022] KEELC 2982 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Petition 3 of 2017

FO Nyagaka, J

June 21, 2022

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF INFRINGEMENT AND OR VIOLATION OF THE PETITIONERS CONSTITUTIONAL RIGHTS CONTRARY TO ARTICLES 19(2), 20(5), 21(1), 2, 2, 22(1), 23(1,2-a,d&e, 26, 27, 27(6), 28, 29, 35, 40, 40(1),(3)(a-b), (4), (6), 431(c & d),(3), 47,47(1-2), 60(1a), 62(4), 65(4), 66(1), 67, 68(c-iv, v, vii), 73(1),(a),iii &iv, 95 and 165 OF THE NEW CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTION 3, 9 & 12 THE GOVERNMENT LAND ACT, CAP 280, LAWS OF KENYA AND IN THE MATTER OF SECTION 65, 66, 67,68,69,70,167,177 & PART X11 OF AGRICULTURAL ACT, CAP 318 LAWS OF KENYA

Between

Charles Opondo Ochieng (Suing on his Own Behalf and on Behalf of:)

1st Petitioner

Nick Musungu (Suing on his Own Behalf and on Behalf of:)

2nd Petitioner

Boniface Makokha Telewa (Suing on his Own Behalf and on Behalf of:)

3rd Petitioner

Jacob Pepela

4th Petitioner

John Wekesa Telewa

5th Petitioner

Stanley Shakilo

6th Petitioner

Jamin Wekesa

7th Petitioner

Godfrey Wanjala

8th Petitioner

Simon Engolan

9th Petitioner

Joseph Ochieng

10th Petitioner

Alex Malakwen

11th Petitioner

Wycliff Wafula

12th Petitioner

Stephen Maboko

13th Petitioner

Fred Mutoro

14th Petitioner

Wilson Kimongo

15th Petitioner

Simon Matete

16th Petitioner

Walter Lui

17th Petitioner

Francis Wekesa

18th Petitioner

Patrick Wangira

19th Petitioner

Dismass Wafula

20th Petitioner

Margaret Nasambu

21st Petitioner

Ronald Barasa

22nd Petitioner

Nickson Wekesa

23rd Petitioner

Agnes Karori

24th Petitioner

Lazaro Wekesa Maran

25th Petitioner

Jones Nasambu

26th Petitioner

Joel Mung’are

27th Petitioner

Grace N. Luturian

28th Petitioner

Laban Wefila

29th Petitioner

Linet Kwamboka

30th Petitioner

Stanley Siatako

31st Petitioner

Ruth Chepchumba

32nd Petitioner

William N. Maruti

33rd Petitioner

Peter Wanyonyi

34th Petitioner

Grace Chemayek Kutwa

35th Petitioner

Rhodah N. Mnupi

36th Petitioner

Matayo Mwalati

37th Petitioner

Jacob S. Msiebebe

38th Petitioner

Jane N. Sudi

39th Petitioner

Florence Kerubo Omoyo

40th Petitioner

Juma Nyongesa

41st Petitioner

Richard Wekesa Wandera

42nd Petitioner

Eunice Barasa

43rd Petitioner

Benson Namunyu

44th Petitioner

Ronald Nalulwe

45th Petitioner

Fred W. Makhapila

46th Petitioner

John Simiyu

47th Petitioner

Isaac Mkenda

48th Petitioner

Benson M. Wasilwa

49th Petitioner

Cylus L. Luchacha

50th Petitioner

Kennedy W. Juma

51st Petitioner

Nancy Munyasia

52nd Petitioner

James Wanjala

53rd Petitioner

Richard Kimengich

54th Petitioner

Kathleen K. M

55th Petitioner

Peter Kituyi Mfuti

56th Petitioner

W. Wanjala

57th Petitioner

Everlyne Luturian

58th Petitioner

Edwin Namshule

59th Petitioner

Janifer Simatwa

60th Petitioner

Rafael Simatwa

61st Petitioner

Patrick Madegwa Mataso

62nd Petitioner

Metrine Lusike

63rd Petitioner

Mary N. Nyongesa

64th Petitioner

Agnes Mlongo

65th Petitioner

Wycliffe Mpalio

66th Petitioner

Isaac Wasai

67th Petitioner

Titus Kituyi

68th Petitioner

Teresa Kerubo

69th Petitioner

Wekesa B. Masinde

70th Petitioner

Joyce Kemuma

71st Petitioner

Tom Joseph Omoyo

72nd Petitioner

Wilkister Moraa

73rd Petitioner

Loice Nyambura

74th Petitioner

Wilfred Shirengo

75th Petitioner

James Ngungi

76th Petitioner

Mary Nafuna

77th Petitioner

Melabi Wambia

78th Petitioner

Doris Bwari

79th Petitioner

Esther Kinuthia

80th Petitioner

Emeldah K. Okotoyi

81st Petitioner

Emilly Nekesa

82nd Petitioner

Josphat Wafula

83rd Petitioner

Joseph Masika

84th Petitioner

Andrew Majimbo

85th Petitioner

Robert Wanjala

86th Petitioner

Caleb Wanjala

87th Petitioner

Roseline Onzere

88th Petitioner

Grace Kananu

89th Petitioner

Mourice Nyongesa

90th Petitioner

Joseph Mhemberi

91st Petitioner

David Nyukuri

92nd Petitioner

Mark Raja Okwara

93rd Petitioner

John Ojimu

94th Petitioner

Humphrey W. Barasa

95th Petitioner

Cleophas B. Mayende

96th Petitioner

Chilson Mlupi

97th Petitioner

Nelson Sitoki

98th Petitioner

Alice N. Wekesa

99th Petitioner

Francis Siati

100th Petitioner

Reuben Kachui

101st Petitioner

Kennedy Wafula

102nd Petitioner

Tom Simiyu

103rd Petitioner

Wamalwa Sanyanda

104th Petitioner

John Makokha Talewa

105th Petitioner

Ernest Popoi

106th Petitioner

Roselyne Khakasa

107th Petitioner

Yohana Wafula

108th Petitioner

Josephat Mbito

109th Petitioner

Hellen Wafula

110th Petitioner

Philister N. Nyongesa

111th Petitioner

Ben Mlango

112th Petitioner

Irine Omunaki Vihima

113th Petitioner

and

Kabarak Farm Ltd

1st Respondent

Abma Investment Ltd

2nd Respondent

Kipsinende Farm Ltd

3rd Respondent

Linshire Ltd

4th Respondent

Simon Mbugua Thungu

5th Respondent

Kenneth Hamish Wooler Keith, Desterio Andadi Oyatsi & Elizabeth Klem (Being sued as Executors of the Estate of Hon. Nicholas Biwott)

6th Respondent

Settlement Fund Trustee

7th Respondent

Commissioner for Lands

8th Respondent

Land Registrar, Trans-Nzoia County

9th Respondent

Director, Land Adjudication & Settlement Trans-Nzoia County

10th Respondent

County Lands Surveyor, Trans Nzoia County

11th Respondent

Cabinet Secretary for Lands, Housing & Urban Development

12th Respondent

National Land Commission

13th Respondent

Inspector General of Police

14th Respondent

Director of Public Prosecutions

15th Respondent

National Assembly of Kenya

16th Respondent

Attorney General

17th Respondent

Cabinet Secretary, Ministry of Interior & Co-ordination

18th Respondent

Dominic K. Singoei, Albert K. Too, Walter K. Kemboi (As representatives of 205 Members of Kimnon Investment Co)

19th Respondent

Kapsitwet River Estate Ltd

20th Respondent

and

County Government of Trans Nzoia

Interested Party

Area Mp, Kwanza Constituency

Interested Party

Kenya Human Rights Commission

Interested Party

Eldoret Express Ltd

Interested Party

John Lonyangapuo

Interested Party

Henry Kiplagat Kiptiony

Interested Party

John Poriot (On Own Behalf and as The Representative of 80 Others Named In The Application Dated 26/8/2017)

Interested Party

Moses Chelelgo, Job Sang & Daniel Kibundo (On own behalf and as the Representative of 296 Others named in the Application dated 24/6/2019)

Interested Party

Ruling

(On whether to grant an order for status quo pending Appeal) 1. This is a Ruling on an Application filed by the Petitioners on 22/11/2021, also bearing the same date of filing. It was brought under Order 50 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1 and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya and all enabling provisions of law. The application seeks the following orders:1)…spent2)There upon hearing and determination this application this Honourable Court be and is hereby pleased to issue status quo orders as at 22nd November, 20201 be issued against the Respondents and Interested Parties in respect of land parcel No. LR 2046 comprised in Certificate No. IR. 318/1 situated within Trans Nzoia County that gave rise to parcels No. Kwanza/Namanjalala/Block4/1, Kwanza/Namanjalala/ Block 4/2, Kwanza/Namanjalala/ Block 4/3 Kwanza/Namanjalala/ Block 4/4 until the appeal is heard and determined.3)That costs of this application be in the cause.

2. The Application was based on based five (5) grounds and supported by an affidavit sworn jointly by Charles Opondo Ochieng, Nick Musungu and Bonface Makoka Telewa. The grounds were basically that judgment was delivered herein on 3/05/2021 herein the Petitioners partially succeeded as against the 6th and 20th Respondents; the Petitioners were desirous of appealing against the Respondents in respect of the prayers not granted in the Petition; they had filed a Notice of Appeal and requested for proceedings to enable them file the appeal in a timely manner; the Respondents who were in occupation of the parcel of land in issue were currently engaged in the subdivision of the subject parcels of land which actions would render the Appeal nugatory in let to continue hence it was in the interest of justice that the orders sought be granted. The Applicants reiterated the contents of the grounds in the Supporting Affidavit save that they annexed to it a copy of the Draft Memorandum of Appeal to evidence the fact that the intended appeal had high chances of success.

3. The 19th Respondent filed a Replying Affidavit in opposition to the Application. It was sworn by one Dominic Kipsugut Songoei on 07/02/2022. The deponent stated that he was the Chairman of Kimnon Investment Company, the 19th Respondent herein. He restated the fact that the Petitioners’/Applicants’ claims against the 1st-6th, 7th-13th, and 16th-19th Respondents were dismissed with no order as to costs. He then stated that the order of dismissal was incapable of being stayed hence the application was incompetent and a candidate for striking out.

Submissions 4. The Applicants filed written submissions dated 26/11/2021 on the same date. In them they posed a number of issues for the Court to determine. One, was whether they were entitled to orders of status quo in respect of the disputed land. They answered in the affirmative and relied on the case of Meru ELC Appeal No. 31 of 2020, Fatuma Abdi Jollo vs. Kuro Lengeson & Another, where the judge explained that when a Court orders that status quo be maintained it expects that the circumstances as at the time of the order must be maintained so as to preserve the state of affairs. They also relied on Murithi Jon Baobab Beach Resort as cited in Inthe matter of an application bySaifudeen Abdullabhai & 4othersfor leave to apply for judicial review and for orders of certiorari and prohibition [2013]eKLR. They then explained the reasons why, in their understanding, the intended appeal had high chances of success by highlighting on each of the proposed grounds of appeal.

5. The 19th Respondent submitted on 24/02/2022 vide a set of submissions dated 22/02/2022. In them it stated that the Applicant’s submissions were misconceived and bad in law since the order of status quo cannot obtain. It reiterated that the judgment only dismissed the Petitioners’ claim against the parties stated in the Affidavit. They then submitted that Order 42 Rule 6 of the Civil Procedure Rules only applies to situations where a matter is pending in Court for further proceedings and not where none is existing. It then submitted that the Applicants were seeking orders of injunction in respect of the parcels of land named in their application and Order 42 Rule 6 did not donate power to the Court to issue such orders pending the hearing of an appeal. It then stated that only the Court of Appeal could, in an appropriate case, issue injunctive orders under Rule 5(2) (b) of the Court of Appeal Rules.

6. They then summed it that the Court did not, in its judgment, make orders touching on the land parcels Kwanza/Namanjalala Bock 4/1, 2, 3 and 4. They stated that the Court simply dismissed the petitioners’ cases against the named Respondents and all interested parties. They then relied on the cases of West College of Arts and Applied Sciences v Orange and others(1976) KLR, 63 and Peter Anyang Nyongo & 2 Others v Safaricom Limited 92007) eKLR (sic).

Analysis And Determination 7. I have carefully read through the Application and the Affidavit in support thereof, the Replying Affidavit and the submissions thereto. I have also considered the law applicable and the case law relied on by the Petitioners and other relevant case law generally. I find that the issues for determination are:a.Whether the Applicant satisfied the requirements for grant of an order for status quo pending appeal.b.Whether to bear the costs of the Application.

8. I start with an analysis of the first issue before me, which is whether the Court should issue an order of status quo. I have anxiously considered the Application before me. If I understood the Petitioners correctly, they intend that the Court issues orders of maintenance of status quo as at 22/11/2021 in respect of the parcels of land they stated in the prayers of the Application, the grounds thereof and the supporting Affidavit because they intend to pursue and appeal in the Court of Appeal against the judgment of the Court delivered on 3/05/2021. They annexed to the supporting Affidavit both the copy of the Notice of Appeal and the Memorandum of Appeal in that regard.

9. My understanding of the law is that there is a difference between the grant of an order of status quo and one for stay of execution of a decree pending the hearing and determination of an appeal (preferred). According to Bryan A. Garner (2019), Black’s Law Dictionary, 11th Edition, Thompson Reuters, St. Paul, MN, 1703, status quo means “state in which”, that is to say, “The situation that currently exists.” In the same Dictionary, the phrase stay of execution means the “the postponement or halting of a proceeding, judgment or the like”. They cannot be one and the same because the former relates to the state of things as obtains irrespective of others or occurrences of other things. But the latter is in respect of actions taking place, and in this regard, proceedings in a certain action. For relevance purposes, the Applicants moved this Court for issuance of the orders sought due to the fact that they had preferred an Appeal from part of the judgment of this Court. Thus, the relevant provisions thereto are in Order 42 of the Civil Procedure Rules, 2010.

10. I have had to distinguish the two phrases because when a party prefers an appeal from a judgment or order of a Court and wishes the execution thereof halted, he/she should file an Application for stay of execution of the order or decree. And in terms of Order 4 Rule 6(4), once a Notice of Appeal is lodged against a decision of a superior Court, it is deemed that an Appeal has been filed in the Court of Appeal. In such circumstances the Applicant then has to satisfy the conditions for grant of stay of execution of the order or decree pending appeal. But the order of status quo should not and cannot be used as a substitute for an order of stay of execution. I would state that the orders of status quo serve a special purpose in the civil law practice and procedure in comparison with those of stay of execution of a decree or order. To equate the two or treat them as one and the same thing would put the practice into confusion and call into application totally different principles for the grant of such diverse orders. Suffice it to say that orders of status quo serve to maintain the state of things as they are. In my view they should not be sought in situations where one would move the Court for a stay of execution.

11. In Republicvs National Environment Tribunal, Ex-parte Palm Homes Limited & Another [2013] eKLR, Odunga J. stated:“When a court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute takes effect must be maintained. An order maintaining status quo is meant to preserve existing state of affairs...Status quo must therefore be interpreted with respect to existing factual scenario..."

12. Also, in TSS Spinning & Weaving; Company Ltdvs Nic Bank Limited & another[2020] eKLR the court was of the view that:“In essence therefore, a status quo order is meant to preserve the subject matter as it is/existed, as at the day of making the order. Status quo is about a court of law maintaining the situation or the subject matter of the dispute or the state of affairs as they existed before the mischief crept in, pending the determination of the issue in contention”.

13. Similarly, in Kenya Airline Pilots Association (KALPA)vs Co-operative Bank of Kenya Limited & another [2020] eKLR, the purpose of a status quo order was explained as follows:“……. By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.”

14. In essence Order 42 Rule 6(2) of the Civil Procedure Rules sets out the requirements to be taken account when a party seeks to stay execution of a decree or order of a Court. This, the Applicants neither met nor attempted to show except for stating that the intended appeal raises triable issues and that it would be rendered nugatory. It was not shown what triable issues these were. In any event, the orders of the Court as against the Respondents were negative ones in the sense that they entailed dismissal of the Petitioners’ claims against the Respondents hence incapable of being stayed. Again, the Applicants only merely stated on oath that the Respondents and Interested Parties were, in the recent past, engaged in subdividing the parcels of land and selling them. In my view, this blanket statement that is unsupported by way of specificity and or documentary proof is of no avail to an applicant who wishes the Court to exercise its discretion in his favour. The upshot is that the Application dated 22/11/2021 is not merited hence incapable of being granted.

15. What is left of me to decide is the second issue, which is: who to bear the costs of the instant application. As stated above, the Application dated 22/11/2021 is lost. Since costs follow the event, they shall do so in the instant circumstances. Thus, the Applicants shall bear the costs of the Application.Orders accordingly.

RULING, DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL THIS 21ST DAY OF JUNE, 2022. DR. IURFRED NYAGAKAJUDGE,ELC,KITALE.