Samwel Kiprono Kirui v Reuben Malakwen Bett [2018] KEELC 3010 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERICHO

E.L.C MISCELLANEOUS APPLICATION NO. 5 OF 2018

SAMWEL KIPRONO KIRUI..............................................APPLICANT

VERSUS

REUBEN MALAKWEN BETT........................................RESPONDENT

RULING

Introduction

1. By a Notice of Motion dated 20th April 2018 and brought pursuant to Order 42 Rule 6(1) and order 51 Rule 1 of the Civil Procedure Rules, the Applicant seeks the following prayers:

a. Spent.

b. That pending the hearing and determination of this application inter partes this Honourable court be pleased to order a stay of execution  of the Ruling and orders made by the Honourable B.R Kipyegon, Resident Magistrate in Kericho MCL&E No 2 of 2018.

c. That this Honourable court be pleased to stay execution of the lower court’s orders of 21st March 2018 pending the hearing and determination of the intended appeal.

d. That the costs of this application be provided for.

2. The application is based on the applicant’s affidavit sworn on 20th April 2018. In the said affidavit the applicant depones that he seeks to appeal against the decision of the trial Magistrate made on the 21st March 2018 allowing the respondent to continue developing the suit property while the case is still pending without a formal application by the respondent. The applicant avers that the said order is prejudicial to him.

3. The application is opposed by the respondents through their Grounds of Opposition filed on the 9th May 2018.

4. The main grounds raised by the respondent are that the applicant’s application is incompetent and fatally defective and that the respondent are likely to suffer prejudice if the orders sought are granted.

5. The application was canvassed through oral submissions.

6. Counsel for the applicant submitted that the matter involves a dispute over a plot where both parties have letters of allotment. He submitted that on 8th March 2018, the court had ordered that neither of the parties ought to take possession of the said plot. When the matter came up for directions on 21st March 2018, instead of giving directions, the court gave exclusive possession of the plot to the Respondent without any formal application. It is against this Ruling that the applicant seeks to appeal. He has attached a copy of the Memorandum of Appeal as he awaits a Certificate of delay as he submitted that the delay in filing the appeal was occasioned by the delay in furnishing the applicant with a certified copy of the proceedings and Ruling of the lower court. He submits that the appeal has high chances of success and that the applicant shall not suffer any prejudice of the prayers sought are granted.

7. On the other hand, counsel for the Respondent attacked the application on four main grounds:

8. First he submitted that the application was not properly before the court as no leave to appeal was sought as required by the provisions of Order 43 of the Civil Procedure Rules and section 75 of the Civil Procedure Act. He submitted that the appeal did not accrue to the applicant as right and failure to seek leave before filing of the intended appeal and the application rendered the application fatally defective.

9. The second ground raised by the respondent is that the application was not filed timeously as the ruling was delivered on 21st March 2018 while this application for stay of execution was filed on 23rd April 2018.

10. The third ground of attack was that the applicant had not demonstrated that he would suffer substantial loss if the application was not granted.

11. Fourthly, counsel submitted that the applicant had not furnished security for costs nor had he exhausted his remedies in the lower court.

12. In a brief response, counsel for the applicant submitted that the court ought to grant the application against the background of Article 159 of the Constitution which enjoins the court to administer substantive justice without undue regard to procedural technicalities.

Issues for Determination

13. From the foregoing, the following issues arise for determination:

i. Whether the application is properly before the court

ii. Whether the application was filed without undue delay

iii. Whether the applicant has demonstrated that he stands to suffer substantial loss if the stay of execution is not granted

iv. Whether the applicant is entitled to the reliefs sought

Analysis and Determination

14. Regarding the first issue I am guided by the case ofMursal Guleid 72 Others V Daniel Kioko Musa (2016) eKLRwhere the court held as follows:

“It is clear that an appeal from an application for review is available as of right by virtue of section 75 I (h) and Order 43 Rule 1(x) of the Civil Procedure Rules”

15. Learned counsel for the respondent submitted that the order from which the applicant seeks to appeal does not have an automatic right of appeal. Order 43 (1) of the Civil Procedure Rules and Section 75 of the Civil Procedure Act sets out the Orders from which appeals lie as of right.  The applicant seeks to appeal against the lower court’s order dated 21. 3.2018 where the learned trial magistrate on his own motion reviewed his order dated 8th March 2018 where he had directed that the status quo in the matter be maintained and the on-going construction should stop.

16. It is clear that an appeal from a decision on an application for injunction or review lies as of right by virtue of Order 43 Rule I (u) and (x). Perhaps the applicant ought to have indicated in the Notice of Motion that the application was being made under Order 43Rule 1(u) as well but failure to include the said rule in the Notice is not fatal. Order 51 Rule 10 provides that no application shall be defeated on a technicality for want of form that does not affect the substance of the application. It is therefore my finding that the application is properly before this court.

17. The second issue is one of delay. The application was filed 32 days after the order was made. The delay has sufficiently been explained as having been occasioned by the delay in supplying the applicant’s counsel with the proceedings. The delay is therefore not inordinate.

18. Among the grounds that the application is based on, the applicant has stated that he will suffer substantial loss if the stay is not granted. Land being a sensitive matter I am persuaded that the applicant would indeed suffer if he fails to get a stay of execution as the respondent would continue with his construction thus altering the subject matter.

19. Finally on the issue on security for costs, the applicant has stated that the respondent may be compensated by an award of costs. I take this to mean that he is ready and willing to furnish security for costs.

20. In view of the foregoing and considering the rival submissions, I find merit in the applicant’s application and I grant a stay of execution pending the hearing and determination of the applicant’s intended appeal on condition that the applicant deposits a sum of Kshs. 30, 000 in court as security for costs within 21 days failing which the order shall lapse.

21. The costs of the application shall be in the cause.

Dated, signed and delivered at Kericho this 30th day of May 2018

..............................

J.M ONYANGO

JUDGE

In the presence of

1. Mr. Nyadimo for the Respondent

2. Miss Sitati for Mr. Langat for the Applicant

3. Court clerk - Rotich