Stephen Mbugua Gituthi, Eunice Njeri Nyoike & Allan Mwangi Maina (All Applicants suing on their own behalf and on behalf of 57 other Applicants) v National Land Commission & Athi Water Services Board [2021] KEELC 2889 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MURANG’A

E.L.C PETITION NO 5 OF 2018

IN THE MATTER OF ARTICLE 22 (1) & (2) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ARTICLES 10,19,20,21,22,23,24 AND 25 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF NATIONAL LAND COMMISSION ACT, 2012

AND

IN THE MATTER OF WATER ACT, 2002 (REPEALED), AND WATER ACT, 2016

AND

IN THE MATTER OF THE LAND ACT, 2012

AND

IN THE MATTER OF THE ACCESS TO INFORMATION ACT, 2016

AND

IN THE MATTER OF THE FAIR ADMINSTRATIVE ACTION ACT, 2015

AND

IN THE MATTER OF THE LAND (ASSESMENT OF JUST COMPENSATION) RULES, 2017

AND

IN THE MATTER OF THE ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL

FREEDOMS UNDER ARTICLES 27,35,40,47,48,50,60 (1) (b), 232 AND 249 OF THE

CONSTITUTION OF THE REPUBLIC OF KENYA

BETWEEN

STEPHEN MBUGUA GITUTHI....................................RESPONDENT /1ST PETITIONER

EUNICE NJERI NYOIKE.............................................RESPONDENT /2ND PETITIONER

ALLAN MWANGI MAINA...........................................RESPONDENT/3RD PETITIONER

(All Applicants suing on their  own behalf and on behalf of 57 other Applicants)

VERSUS

NATIONAL LAND COMMISSION............................RESPONDENT/1ST RESPONDENT

ATHI WATER SERVICES BOARD...............................APPLICANT/2ND RESPONDENT

RULING

1. The Applicant/2nd Respondent filed a Notice of Motion Application dated 03/07/2020 expressed under Section 1A, 1B of Civil Procedure Act, Order 42 Rules 3,5,6 and Order 52 Rule 1 (sic) of the Civil Procedure Rules seeking orders; -

a.   Spent.

b.   That pending (sic) and determination of this application inter partes, this Honorable Court be pleased to stay its decisions and orders issued on the 18/6/2020.

c.   That pending the hearing and determination of the intended Appeal, this Honorable Court be pleased to issue an order of stay of decisions and orders issued on the 18/6/2020.

d.   That this Honorable Court be pleased to grant such orders as may deem fit and just in the circumstances.

e.   That unless the orders sought are granted the Appellant (sic) herein will be rendered nugatory

f.    That the Appellant has moved to Court expeditiously and without delay.

g.   That costs of the Application be granted to the Applicant.

2.   The Application is supported by the grounds on the face of it that are reiterated in the Supporting Affidavit sworn by the Eng. Michael M. Thuita, the Chief Executive Officer (CEO) of the 2nd Respondent.  He averred that the 2nd Respondent is desirous of Appealing against the Ruling delivered on 18/06/2020 and annexed a copy of the draft memorandum of Appeal marked as MT-1. That the intended Appeal is meritorious and unless the stay orders are granted, the Applicant stands to suffer irrecoverable loss. He deponed that the Applicant laid water pipes on the undisputed land owned by 17 petitioners after withdrawal of Court cases by consent and due compensations were accordingly paid by the 1st Respondent. He avowed that the Applicant has always engaged the petitioners for amicable settlement even prior to delivery of the impugned Ruling. A bundle of exhibits marked MT-2 were annexed in support of the Application.

3.   The Petitioners/Respondents opposed the Application vide the Replying affidavit sworn by Stephen Mbugua Gituhi and dated 07/07/2020. He deponed that the Applicant is undeserving of the prayers sought because they have continued construction works on the Petitioners’ properties and in particular installation of pipelines despite the existing contempt orders. He annexed several photographs marked SMG1 and SMG2 in support. That the Applicant has destroyed farms, cut down trees and demolished petitioners’ homes and developments in flagrant disobedience of existing orders. He also accused the Applicant of illegally taking up more than the gazetted 15 feet of land and listed parcels of land that it invaded after the Contempt Ruling to wit CHANIA/NGORONGO/3757, CHANIA/NGORONGO/3761, CHANIA/NGORONGO/3762 AND CHANIA/NGORONGO/3766. Furthermore, he swore that the Applicant is guilty of perjury in relation to paragraphs 8,9 and 10 of the Supporting Affidavit which states that the petitioners were duly compensated for the affected properties. He reiterated that the 2nd Respondent has forcefully invaded their properties and the application is an attempt to delay justice. That the application is unmeritorious as it is premature, no substantial loss has been demonstrated and the 2nd Respondent is obliged to obey and comply with the Court Orders. He urged the Court to dismiss the application and the 2nd Respondent be made to purge its contempt.

4.   The 1st Respondent did not oppose the Application.

5.   Parties elected to canvass the Application by way of written submissions. The Applicant filed its submissions dated 30/9/2020 and supplementary submissions dated 20/01/2021 whilst the Petitioners filed their submissions dated 15/12/2020. Correspondingly, learned counsels for both parties highlighted their respective submissions in open Court on 08/03/2021.

6.   According to the Applicant, the main issue for determination is whether they have set out a proper case for grant of orders for stay of execution pending the hearing and determination of their intended Appeal. It is submitted that they have satisfied the criteria for granting stay of execution as stipulated by provisions of Order 42 Rule 6(2) of the Civil Procedure Rules.

7.   It further submitted that vide its notice of Appeal and draft memorandum of Appeal, the Applicant has demonstrated that they have an arguable Appeal that need not necessarily succeed as stated in the Court of Appeal Civil Application Nbi 345 of 2004 Damji Pragji Mandavia v Sara Lee Household & Bodycare (K) Ltd and Civil Application Nai 124 OF 2008 Joseph Gitahi Gachau & Another V Pioneer Holdings (A) Ltd & 2 others.

8.   In arguing that it stands to suffer substantial loss, the Applicant submitted that its CEO who has been cited for contempt is likely to lose his liberty and employment hence impact negatively on its operations and disrupt the organizational structure. That if the orders sought are denied, the intended Appeal will be rendered nugatory noting that the Applicant is not in control of the Court of Appeal diary to fast-track the hearing of the Appeal. Lastly, it submitted that it was ready and willing to furnish security for due performance of the Court orders.

9.   Additionally, the Applicant filed rejoinder submissions dated 20/01/2021 wherein it denied carrying on any construction works on the suit lands. That its right of Appeal has crystalized as provided under Article 50(2) q of the Constitution and enhanced by Rule 59 of the Court of Appeal rules. It relied on the supreme Court case of Joseph Lendrix Waswa –vs- Republic [2020] eKLR in support of its submissions.

10. The Petitioners submitted that the order sought by the Applicant as provided for under Order 42 Rule 6 of the Civil Procedure Rules is equitable and discretionary in nature. They faulted the Applicant for the continued contemptuous construction as evidenced by photos in paragraph 4 of their Replying affidavit. That the Applicant admitted to proceeding with construction on account of alleged consents by some of the petitioners which the Court had pronounced itself on as illegal. Consequently, the Petitioners argued that the Applicant has come to Court with unclean hands and thus undeserving of the orders sought. They termed the Applicants conduct as prejudicial noting that they have been divested of their properties without any compensation and without following the due process of the law.

11. The petitioners maintain that the application is premature as no Appeal lies prior to sentencing for contempt in line with section 5 of the Judicature Act. That Appeals to the Court of Appeal lie only upon conviction and sentencing as per section 379 of Criminal Procedure Code and there is no legal provision for interlocutory criminal Appeal as in the instant case. That this Court has jurisdiction to punish the Applicants for contempt.

12. On the issue of substantial loss, the petitioners dismissed the CEO’s risk of arrest and jail as premature and speculative in nature and that it has not been proven. They argued that substantial loss is a matter of tangible evidence as opposed to a matter of apprehension or speculation. Lastly on the offer for security as due performance the petitioners dismissed the same as speculative since it is not known the nature of sentence the Court will impose. Several cases were cited in support including Johnson Gathanga Mwaniki V Esther Waitheri Mwaniki & 4 others [2019] eKLR, Patrick Mukiri Kabundu V Miliki Ltd [2016] eKLR, Fredrick Mwaniki Musau v Joseph Muthiani Kivindu & Anor. [2019] eKLR and Kenya Airports Parking Services Ltd & Anor. V County Government of Mombasa & 4 others [2018 eKLR.

13. The parties have addressed the Court on the provisions of Order 42 and its applicability to the application. It provides as follows; the Court must consider in granting orders of stay of execution; 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 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; application must be filed without delay.

14. The Applicant premised the application on Orders 42 and 52 (1) of the Civil Procedure   Rules.

15. The Applicant submitted that if the CEO is sentenced there is a chance that he will be arrested and jailed and thus lose his liberty and employment. The first limb an Applicant must prove therefore in an application is that substantial loss will occur if stay of execution is denied.

16. The Petitioners maintained that there is no substantial loss that will result if stay of execution is denied. They pleaded that indeed the application is premature and speculative since the Court has not passed its sentence and the contemnor is yet to be heard on mitigation.

17. It is trite that substantial loss must be demonstrated by tangible evidence and it is not enough for an Applicant to plead that it shall suffer substantial loss. Substantial loss is the cornerstone on which an application of stay of execution stands or falls on account of proof. Execution being a lawful process cannot amount to substantial loss. This was the holding of the Court in the case of James Wangalwa & Another vs. Agnes Naliaka Cheseto [2012] Eklr.

18. On the 18/6/2020 the Court made a finding of guilt on the part of the 2nd Respondent. In so far as the trial was concerned the question of culpability was determined. At the conclusion of the hearing the Court ordered the Applicant to appear before it for mitigation and sentencing. My understanding of the Applicant’s application is a stay of the proceedings relating to mitigation and sentence.

19. The application has been brought under Order 42 Rule 6 of the Civil Procedure Rules.  This order concerns itself with stay of execution in civil proceedings. Execution in a matter of contempt proceedings will only come to the end after the sentence has been handed down to the contemnor. To the extent that the Court has not punished the contemnor, there is really nothing specific that the Court should stay with respect to execution. The consequences which are the orders the Court may make for the sentence at this stage are not known and therefore execution cannot ensue.

20. It is my view that the provisions of Order 42 Rule 6 of the Civil Procedure Rules are of little value to the Applicant in the circumstances. See the case of Kenya Power & Lighting Co. Ltd vs. Esther Wanjiru Wokabi Civil Appeal No. 326 of 2013 (2014) eKLR, where the Court established the criteria that the Court is to consider in an application for an order of stay of proceedings. The Court stated that:

“Having made that finding, it is obvious that Order 42 Rule 6(2) cannot come to the aid of the Applicant.  The Court must be guided by other considerations in making its decision whether or not to grant stay of proceedings as sought herein but then, what are those considerations”.

21. With respect to stay of proceedings, there are three main principles to guide a Court in such applications: a. Whether the Applicant has established that he/she has a prima facie arguable case; b. Whether the application was filed expeditiously and c. Whether the Applicant has established sufficient cause to the satisfaction of the Court that it is in the interest of justice to grant the orders sought.

22. In the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 the Court held:

“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order Appealed from is a matter of judicial discretion to be exercised in the interest of justice… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order.  And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended Appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”

23. The Court determined the rights of the parties (Petitioners and the Respondents) vide its judgement delivered on the 31/7/2019.

24. The only thing that remained after the delivery of judgement was compliance of the said judgment either voluntarily or through execution.

25. On the 22/10/19 the petitioners filed an application for contempt against the Applicants alleging disobedience of the Court orders issued on the 31/7/2019.

26. Upon hearing the parties, the Court made a positive finding that the orders of the Court were disobeyed by the Applicant.

27. Before the Court receives the Applicant’s mitigation, the Court does not know what the contemnor will say in mitigation in form of a plea to be considered before handing down the sentence. Neither will the contemnor know the sentence the Court will dispense after taking into account the mitigation offered.

28. The point of emphasis here is that the proceedings in this case are incomplete until the process of mitigation and sentencing is done. I am guided by the decision of the Court in in the case of Kenya Airports parking services limited supra. The facts in this case are relevant to the instant case as the Applicant sought stay of contempt proceedings against him after the trial Court had found him to be in contempt of Court. The Court set the date for mitigation and sentencing but feeling aggrieved, the Applicant preferred to stay the said proceedings pending his proposed Appeal. In dismissing the application, the Court observed that an Applicant cannot plead prejudice by a sentence whose nature and severity he knew nothing about. That the Applicant had not shown the substantial loss he would suffer if the contempt proceeding were not stayed.

29. With respect to an arguable case, it is the Courts position that this is the preserve of the Court of Appeal to examine under its rules. It suffices to note that the Applicant has filed a memorandum of Appeal with grounds thereto.

30. This Court has been referred to the Applicants submission that its right of Appeal has crystallized pursuant to the case of Joseph Lendrix supra. I also share the Supreme Courts view that though the right of Appeal against interlocutory decisions is available to a party in a criminal trial it should be deferred and await the final determination by the trial Court. The Court went ahead to state exceptional instances that Appeals against interlocutory decisions may be sparingly allowed such as those that involve the admissibility of evidence, the decision is of sufficient importance to the trial and where the trial Court is being asked to recuse itself.

31. The Petitioners have a legitimate expectation to enjoy the fruits of their judgement and delay in achieving that amounts to delayed justice.

32. I place reliance on the decision of the Court in the case of Wendano Matuu Co Ltd & 2 others v Joshua Kimeu Kioko & 6 others [2020] eKLRwhere the Court in dealing with a similar application that sought stay of proceedings pending Appeal against contempt orders observed that;

“…This Court has already found the Defendants guilty of contempt of Court and has directed them to appear before it for purposes of mitigation and sentencing and hence it is prudent for the Applicants to approach the appellate Court for orders of stay. Further, the contempt proceedings are at the tail end and which have taken a criminal dimension and that this Court cannot abdicate from its responsibility to punish an offender who has been found guilty by deferring the sentence now due. It is only a higher Court that is seized with jurisdiction to grant orders of stay of sentence…”

33. The next issue that I must examine is the alleged continued contempt of the Applicant on the suit lands. The affidavit of Eng Michael Thuita in para 8, 9 and 10 made disclosures to that the Applicant laid the pipework on land belonging to some of the petitioners who had signed consents and accepted compensation from the 1st Respondent. Several photographs were also annexed by the Respondent to show that the works are still ongoing on site. The Applicant’s response was a general denial. All these go to support contempt or evidence of contempt on the part of the Applicant that has not been purged either during and after the contempt trial. An Applicant who has not purged a contempt is one that has no favour in the eyes of the Court.

34. The submission that the CEO would lose his liberty and possible employment do not in my view amount to substantial loss as highlighted above. The 2nd Respondent’s claim for substantial loss is therefore unfounded as the Court is yet to pass any sentence.

35. Going by the reasons given above I find that the Applicant has not given sufficient grounds to warrant granting the orders of stay of the proceedings.

36. As alluded earlier the Applicants will still have a right of Appeal as against the order on sentence and therefore I see no prejudice that will be visited to the Applicant (none has been shown) if the application is declined.

37. Consequently, the application is found to be without merit.

38. It is dismissed with costs to the Petitioners.

39.     It is so ordered.

DELIVERED, DATED AND SIGNED AT MURANG’A THIS 10TH DAY OF JUNE, 2021

J.G. KEMEI

JUDGE

Delivered in the presence of;

Thige for the 1st – 4th Petitioners

1st Respondent – Absent

Mulekyo for the 2nd Respondent

Munene, Ms Mbatian and Ms Hassan for the Intended Interested Party.

Alex: Court Assistant