Ochieng (Suing on his Own behalf and on behalf of:) & 112 others v Kabarak Farm Ltd & 23 others; County Government of Trans Nzoia & 9 others (Interested Parties) [2022] KEELC 2975 (KLR)

Ochieng (Suing on his Own behalf and on behalf of:) & 112 others v Kabarak Farm Ltd & 23 others; County Government of Trans Nzoia & 9 others (Interested Party) (Environment & Land Petition 3 of 2017) [2022] KEELC 2975 (KLR) (21 June 2022) (Ruling)

Neutral citation: [2022] KEELC 2975 (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 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 their 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 (Being Sued as Executors of the Estate of Nicholas Biwott)

6th Respondent

Desterio Andadi Oyatsi (Being Sued as Executors of the Estate of Nicholas Biwott)

7th Respondent

Elizabeth Klem (Being Sued as Executors of the Estate of Nicholas Biwott)

8th Respondent

Settlement Fund Trustee

9th Respondent

Commissioner for Lands

10th Respondent

Land Registrar, Trans-Nzoia County

11th Respondent

Director, Land Adjudication & Settlement Trans-Nzoia County

12th Respondent

County Lands Surveyor Trans Nzoia County

13th Respondent

Cabinet Secretary for Lands, Housing & Urban Development

14th Respondent

National Land Commission

15th Respondent

Inspector General of Police

16th Respondent

Director of Public Prosecutions

17th Respondent

National Assembly of Kenya

18th Respondent

Attorney General

19th Respondent

Cabinet Secretary, Ministry of Interior & Co-ordination

20th Respondent

Dominic K. Singoei (As a Representative of 205 Members of Kimnon Investment Co)

21st Respondent

Albert K. Too (As a Representative of 205 Members of Kimnon Investment Co)

22nd Respondent

Walter K. Kemboi (As a Representative of 205 Members of Kimnon Investment Co)

23rd Respondent

Kapsitwet River Estate Ltd

24th 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 (On Own Behalf and as the representative of 296 Others named In the application Dated 24/6/2019)

Interested Party

Job Sang (On Own Behalf and as the representative of 296 Others named In the application Dated 24/6/2019)

Interested Party

Daniel Kibundo (On Own Behalf and as the representative of 296 Others named In the application Dated 24/6/2019)

Interested Party

Ruling

On stay of execution of Decree 1. This is a Ruling on an application filed by the 6th Respondent/Applicant on 18/05/2021. It was dated 17/05/2021. It was brought under Order 42 Rule 6 of the Civil Procedure Rules, 2010, Rule 32 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all other enabling provisions of law. The application sought the following orders:(1)…spent(2)…spent(3)There be a stay of execution of the Judgment and Decree of the Honourable Court rendered on 03/03/2021 pending the hearing and determination of the 6th Respondent/Applicant’s Appeal against the judgment and decree.(4)This Court be pleased to give any further or other orders as it may deem just and expedient.(5)Costs incidental to this application abide with the results of 6th Respondent/Applicant’s Appeal.

2. The Application was based on eleven (11) grounds and supported by an affidavit sworn by Kenneth Hamisi Wooker Keith, learned counsel but who was one of the executors of the estate of the 6th Respondent/ Applicant, on 17/05/2021 and filed on 18/05/2021 together with the Application.

3. The Applicant is the 6th Respondent in the Petition. He stated, in the grounds in support of the Application, that he was aggrieved by the judgment and decree of the Court rendered on 3/05/2021; he filed a Notice of Appeal against the said judgement and decree; he believed that there were reasonable grounds of appeal and that without a stay of execution of the appeal the same would be rendered nugatory and academic exercise; that there was a likelihood of substantial loss resulting since he would be compelled to pay Kshs. 1,500,000/= for unlawful arrest, Kshs. 1,500,000/= for malicious prosecution and Kshs. 3,000,000/= for unlawful eviction yet the Petitioners were persons of limited means hence unable to repay the sums if the appeal was successful. He then posited that he was willing to abide by any conditions the Honourable Court would find just and equitable to issue as a condition for stay of execution, including depositing security for due performance of the decree if the appeal was not successful; and the Petitioner would suffer no prejudice if the application, which he stated was brought timeously, was granted.

4. The Deponent of the Supporting Affidavit reiterated the contents of the grounds in support of the Application. However, he attached to the Affidavit the copy of the impugned judgment of this Court and gave a detailed summary of the find reliefs in it. He then stated that the execution of the sums in the judgment would occasion the 6th Respondent irreparable harm in the event the Appeal succeeded. He stated that the Applicant was willing to give security by way of a bank guarantee or in the alternative deposit the sum in question in Court if directed to do so. He prayed for the application to be allowed.

5. The Application was not opposed.

6. On 11/06/2021 the Applicant filed written submissions dated 16/06/2021. In them he referred to the Application dated 11/05/2021 yet the same was dated 17/05/2021. The content of the submissions was on all fours about the Application dated 17/05/2021. In summary the 6th Applicant stated that he relied on Order 42 Rule 6 of the Civil Procedure Rules, and the list of authorities he attached to the submissions. They included the High Court case of HGE v SM [2020] eKLR and G.N. Muema P/A (Sic) Mt View Maternity & Nursing Home v Miriam Maalim Bishar & another[2018] eKLR both of which gave the principles the Court should rely on in applications of such a nature, and which he summarized in the submissions.

7. On substantial loss, he relied on the High Court case of Victory Construction v BM (a minor suing through next friend one PMM) [2019] eKLR. In it the Court relying on the earlier case of Century Oil Trading Co. Ltd v Kenya Shell Ltd, Nairobi Milimani 1561 of 2007 held that where execution of a monetary decree is sought to be stayed the financial position of the Applicant and Respondent become an issue in case of considering whether substantial loss would result, and the Court has to strike a balance between the interests of the Applicant seeking to preserve the status quo and those of the Respondent.

8. In regard to whether the Application was made with unreasonable delay, the Applicant relied on the case of Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] eKLR. On security for due performance of the decree he relied on the case of HE. V SM (supra)and Focin (supra) together with those of Lee G. Muthoga v Habib Zurich Finance Ltd & Anor(2016) eKLR and Arun C Sharma v Ashana Raikundalia T/A A Raikundalia & Co Advocates & 2 Others[2014 eKLR. And, lastly, about whether there was reasonable belief that the appeal was based on sustainable grounds that had good prospects of success, the Applicants relied on the case of Daniel Walter Rasugu v. Johana Nyakwoyo Buti & 2 Others [2008] eKLR.

Analysis and Determination 9. The fact that an Application is not opposed does not necessarily lead to an automatic grant of thereof. The Court is enjoined to examine its merits or otherwise and make a finding on them. As such I have carefully considered the Application and the affidavit in support, the submissions on record as well as the law and the case law cited. I find two issues for determination. These were:a.Whether the Applicant has satisfied the criteria for grant of stay of execution pending appeal.b.Who to bear the costs of the Application?

10. I begin by analyzing whether the application is merited by way of a demonstration of meeting the requirements for grant of an order for stay of execution pending appeal. First, it is not lost sight of the fact that the grant of an order of such a nature is discretionary and is given by a Court acting judiciously, that is to say, a Court weighing all circumstances of the case and acting reasonably within the law by applying its mind properly to the law. It is now settled law in regard to applications for stay of execution of judgment pending (an intended) appeal that certain conditions have to be met by an applicant. The Applicant has to place himself within the parameters set out in Order 42 Rule 6 of the Civil Procedure Rules.

11. The said provision states that:“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.

12. The provision gives three conditions that ought to be satisfied, namely:i.That substantial loss may result in case the order is not grantedii.The application is brought without undue delayiii.Security for due performance of the decree has been offered by the Applicant.

13. To purport to reinvent the wheel on the import and interpretation of this provision would be overly ingenious. I will not take time to do so as of now. Rather I will restate them and add other or further conditions that other courts, including this one, have previously added to the three. This, looking at what my brother and sister judges have stated over the issue, I would summarize it by taking an excerpt from one authority as hereunder: In Civil Appeal No.107 of 2015, Masisi Mwita -vs- Damaris Wanjiku Njeri (2016) eKLR, the Court held that:-“The application must meet a criteria set out in precedents and the criteria is best captured in the case of Halal & Another..Vs…Thornton & Turpin Ltd, where the Court of Appeal (Gicheru JA, Chesoni and Cockar Ag. JA) held that:-“The High Court’s discretion to order stay of execution of its Order or Decree is fettered by three conditions, namely; - Sufficient Cause, substantial loss would ensue from a refusal to grant stay, the Applicant must furnish security, the application must be made without unreasonable delay.“In addition, the Applicant must demonstrate that the intended Appeal will be rendered nugatory if stay is not granted as was held in Hassan Guyo Wakalo…Vs…Straman EA Ltd (2013) as follows:-“In addition the Applicant must prove that if the orders sought are not granted and his Appeal eventually succeeds, then the same shall have been rendered nugatory.”These twin principles go hand in hand and failure to prove one dislodges the other”

14. In the instant case the Applicant emphasized that he had filed a Notice of Appeal against the said judgement and decree of the Court and that he believed that there were reasonable grounds of appeal. The belief itself in there being reasonable grounds of appeal is not one of the conditions that the law requires that it be fulfilled. The Applicant ought to demonstrate that he has an arguable appeal. By the appeal being arguable does not mean that it must succeed. However, he must show that the grounds of appeal raise points which the appellant Court can consider as worth urging before it. The applicant failed to do this. He ought to have demonstrated that the appeal would not be a frivolous one.

15. Again, the Applicant contended that the intended appeal would be rendered nugatory and academic exercise if a stay of execution of the judgment was not granted. He gave a breakdown of the sums of money that he would lose which would amount to substantial loss in case the execution was not stayed. Moreover, he argued that the Petitioners were persons of limited means hence would be unable to repay the sums if the appeal was successful. In a bid to safeguard the sums due under the decree, the Applicant stated that he was willing to abide by any conditions this Court would find just and equitable to issue as a condition for stay of execution, including depositing security for due performance of the decree if the appeal was not successful.

16. Having considered the totality of the facts, arguments and submissions herein, and considering the fact that this Court has already found that the rights of the Respondents in the instant were violated, they were unlawfully evicted from the respective portions of land they occupied and were maliciously prosecuted, even if it can be and was argued that they are of limited, they are human like the Applicant and deserved and still do human dignity. This Court is of the view, and doing the best it can do, balancing all the interests of the parties, that it would be in appropriate to grant a stay of execution of the decree herein pending the hearing and determination of the intended appeal, under the following conditions:a.That the applicant pays half of the decretal sums in all the limbs in the judgment to the Respondents within thirty (30) days of this ruling, in default of which the orders herein shall lapse.b.The Applicant shall deposit the balance of the decretal sum in Court within the said period of thirty (30) days failure of which the stay of execution orders herein shall lapse.c.The Applicant shall file and serve the record of appeal herein within the next sixty (60) days of this ruling, in default of which the orders herein shall lapse irrespective of whether or not conditions (a) and (b) above shall have been fulfilled.d.The the1re shall be no order as to costs of the instant Application.Orders accordingly.

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