Republic v County Government of Kiambu & National Land Commission,Ex Parte; Kiambu Farmers Choice Limited [2021] KEELC 1928 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC JUDICIAL REVIEW CASE NO. 6 OF 2019

REPUBLIC..............................................................................................APPLICANT

VERSUS

THE COUNTY GOVERNMENT OF KIAMBU.......................1ST RESPONDENT

THE NATIONAL LAND COMMISSION.................................2ND RESPONDENT

AND

KIAMBU FARMERS CHOICE LIMITED......................EX PARTE APPLICANT

RULING

The matter for determination is the Notice of Motion Application dated 25th August 2020 by the 1st Respondent/ Applicant   Seeking for orders that;

1.   That upon hearing and determination of this  present Application, the Honourable Court  be pleased to grant  a stay of Execution of the Orders issued  by this Honourable Court  of Certiorari to quash  and remove  the 2nd Respondent’s decision  and permanent Injunction  and costs issued  against the Applicant  herein in its Judgment  on 7th May 2020  in Judicial Review No. 6 of 2019.

2.   That costs of this Application be in the cause.

The Application is premised on the grounds that  on 7th May  2019, the Court delivered a  positive Judgment  in favour of the Ex Parte Applicant. That the present stay of Execution  Application has been brought without  delay after the High Court suspended the   President’s  directive on ban  of hiring Private Law Firms  by public entities since the Law Firm was already on record,  when the  ban was announced by the President  His Excellency  Uhuru Muigai Kenyatta. That the Applicant preferred an Appeal on the whole Judgment and has an arguable  Appeal with High chances of success and the same is not merely frivolous or vexatious..

Further that the   Appeal raises  serious issues that the Court of Appeal  must consider in particular whether the mere questioning  by the Ex Parte Applicant  of the fact  if the 1st Respondent acted ultra vires  meets the threshold  for orders of  Judicial Review . That it was improper for the  Judge to grant  prayer No. 2  as it effectively blocked  the 1st & 2nd Respondents from making  further decisions  with regards to the   subject  property, a  mandate  which should be left to the  National Land  Commission  as a Constitutional  Commission established  under Article 67  of the Constitution of Kenya  and or an Appeal  Court and not a Judicial Review Court.

That  the Ex Parte Applicant  obtained Judgment  by concealment  of material facts by leaving  out the determination page of the National  Land Committee, more specifically  paragraph 15  of the  determination which gave  the Applicant another  opportunity to lodge  any claim  on the subject land. That it was improper  for the Learned  Judge  not to effectively deal  with the question of whether a decision was made or a recommendation to the registrar  by the Commission, since it was a live issue all through the  Judicial Review  process. That the  said grounds raise  fundamental legal  issues that the Court  of Appeal  must rectify and pronounce itself accordingly. That unless the impugned decisions  and orders are stayed, the 1st Respondent will proceed and  execute  its decision,  which was subject of the proceedings  before the High Court  and in effect rendering the  Intended Appeal  nugatory and a mere academic exercise.

In his Supporting Affidavit, Dr. Martin  Mbugua,  the 1st Respondent’s/ Applicants  and County Secretary  and Head of Public Service averred that   the  Applicant lodged  a complaint with the 2nd Respondent  under the Historical land justices claim and the 2nd Respondent took up the matter for investigations. That on 26th  September 2018, the  Ex Parte Applicant was invited to a hearing  before the NLC Committee,  but failed to turn up  and the  scheduled hearings took place, That the 2nd Respondent then made recommendations  dated 7th February 2019, which were subsequently gazette  on 1st March 2019,  which recommended that the suit property was  public land that had  been wrongly alienated  to private owners and converted  to private land.

That  the Ex Parte Applicant then filed the instant Judicial Review proceedings and on  7th May 2020 and the Court  delivered its Judgment and granted it prayers 1 & 2. That the  Applicant has since preferred an Appeal  and  has lodged a Notice  of Appeal  dated 21st May 2020,  in readiness for preparing his Record of Appeal. That  he has been advised by  his Advocates on record, that the Court made a positive order, capable of execution. That he is further advised by his Advocates on record that the holding of the Learned Judge  are demonstrative of errors  that the Court of Appeal should rectify . That unless the impugned  decision and  orders are  stayed, the  Ex parte Applicant will  proceed and execute  the  decision of this Court  and in  effect rendering  the intended Appeal nugatory and it is thus in the interest of justice that the  orders sought are granted.

The Application is opposed and the  Ex Parte Applicant  filed grounds of opposition  dated  29th  September 2020,on the following grounds ;

1.   The  Applicant has failed  to demonstrate  the substantial loss  that will, be occasioned to it  if stay is not granted.

2.   The Applicant  in failing to demonstrate the substantial Loss  it will suffer  if stay is not granted has failed to comply with   a mandatory  requirement  of order 42  rule 6  of the civil  procedure  rules 2010 .

3.   There has  been undue delay  in filing the Application contrary  to the provisions  of Order 42  Rule 6 of the Civil Procedure  Rules 2010.

4.   The Applicant has failed to  provide any justifiable  explanation for failing  to file the Application  timeously  and at the opportune time  that is immediately after delivery  of this Honourable Court’s Judgment on  7th May 2020.

5.   The  Applicant has failed to  provide a memorandum of Appeal  and has not demonstrated that  the intended Appeal is arguable.

6.   The  Applicant has failed to  demonstrate  in what way the intended Appeal will be rendered nugatory  if an order of stay Is not granted

7.   The Application is an abuse of the court process.

The Application was canvassed by way of written submissions which the Court has carefully read and considered. The Court has also read and considered, the instant Application, the affidavit in support, grounds of opposition and the relevant provisions of law, and finds that the issue for determination is whether the  Applicant has met the threshold  for grant of stay of execution orders.

The   1st  Respondent has sought  for  the grant of stay of execution pending  Appeal as against the Orders of this Court that were issued on 7th May 2020.  It is the Applicant’s contention that  after the delivery of the Court’s Judgment, they did file a Notice of Appeal, and further  that they were unable to  proceed to file the Memorandum of Appeal nor file the instant Application as the  President had put a  ban on the  hiring of private Law Firms. It is thus not in doubt that  no substantive  Appeal has been filed  so far and what is on record is only a Notice of Appeal. It is further not in doubt that the time within which  the Applicant ought to file an Appeal had run out even  by the time the instant Application was being filed time within which to file the Appeal had lapsed and no  Application for extension to file the Appeal out of time has been filed.

Grant of stay of execution pending Appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules, the relevant part of which states as follows:

“(1) No Appeal or second Appeal shall operate as a stay of execution or proceedings under a decree or order Appealed from except Appeal case of 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.

(3) …

(4) For the purposes of this rule an Appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of Appeal has been given.

(5) …

(6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an Appeal from a subordinate court or tribunal has been complied with.”

Further in the case  of James Wangalwa & Another …Vs. Agnes Naliaka Cheseto[2012] eKLR,the court held that ;

“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the Appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.”

It is thus not in doubt that the  main reason as to why a Court would    grant a party stay of Execution pending Appeal would be so that the  Appeal would not be rendered nugatory. To  prevent  substantial loss by  preserving the status quo pending the hearing and determination of the Appeal. In this instant  case, there is no substantive Appeal that has been  filed by the Applicant,  No Memorandum of Appeal has been filed . Without an Appeal and given that time within which to file the Appeal has run out and  further given that the Applicant has  not produced any evidence that  it has sought for extension of time within which to file the Appeal, It is thus  the Court’s considered view that the Application has no anchor within which it is to be held.  Therefore,  there would be no legal  justification to grant  any stay, even  if the  Court was to  find that  the   Applicant  had met the threshold for grant of stay of execution Orders. See the case of James Mbatia Thuo & Ephantus Mwangi ….Vs… Kenya Railways Corporation & Attorney General of Kenya [2018] eKLRwhere the Supreme Court held that ;

“The Notice of Appeal was filed on 23rd December 2015, while the application for stay was lodged at the Supreme Court Registry on 15th May 2017; more than a year after the expiry of the statutory time provided for filing Appeals. The Applicants have not provided any reason for their failure to apply for an extension of time, which application, had it been granted, would have enabled them to file their Appeal and thereby provided legal grounding for the rejected application for stay.

[21] In the absence of an Appeal, or an application for extension of time, accompanied by a memorandum of Appeal, the rejected application had no legal basis. We therefore see no reason to interfere with, or upset the decision by the Honourable Registrar rejecting the application.”

The Upshot  of the foregoing is that the Court finds and holds that the Application for stay of execution pending Appeal   has no legal basis as there is no  Appeal on record and therefore no  there is anchor upon which the stay will be grounded. Consequently the Court finds that the Notice of Motion Application dated 1st August 2020 is not merited and the same is dismissed entirely with costs to the Ex Parte Applicant/Respondent herein.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 24TH DAY OF SEPTEMBER, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy