Stephen Njau Kamau v Erick Jacques Jean Marie Giles Modave, Anne Adongo Olewe, Nancy Watheka Njau & James Kamau Njau [2015] KEHC 3825 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 35 OF 2012.

STEPHEN NJAU KAMAU ………............….….PLAINTIFF/RESPONDENT

=VERSUS=

ERICK JACQUES JEAN MARIE

GILES MODAVE………………...........…….1ST DEFENDANT/APPLICANT

ANNE ADONGO  OLEWE ……….......……3RD DEFENDANT/APPLICANT

NANCY  WATHEKA NJAU…………….…...4TH DEFENDANT/APPLICANT

JAMES KAMAU NJAU……………......…...5TH DEFENDANT/APPLICANT

R U L I N G

1. ERICK JACQUES JEAN MARIE GILES MODAVE, ANEE ADONGO OLEWE , NANCY WATHEKA NJUAUand JAMES  KAMAU NJAU,hereinafter  referred  to as 1st , 3rd, 4th, and 5th   Applicant respectively, filed  the notice of motion  under certificate of urgency dated 6th August, 2014  for injunctive order in respect  of Land parcel Bukhayo/Mundika/1537, stay of execution of the judgment  delivered  on 8th July, 2014 pending the  hearing and determination of the intended appeal and costs.  The Applicants have  set out five grounds  marked (a)  to (e).  The  application is  supported by the affidavit  of the 3rd Applicant sworn  on 6th August, 2014 to which  is annexed  a letter dated 18th July, 2014 addressed to the Deputy Registrar seeking copies of proceedings and judgment  and a notice  of appeal dated 21st  July, 2014.

2. The application is opposed by Stephen Njau Kamau, hereinafter referred to as the Respondent, through his replying affidavit sworn  on 27th October, 2014.

3. The application is brought under Order 40 Rule 1, Order 42 Rule 6 (1)  of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure  Act.  The Applicants  main ground for the application appear to be ground (c) to the effect that the ‘’Respondent is in the process of executing  the orders  of the judgment  and dispose off the suit property’’In the replying affidavit , the  Respondent  has deponed  that the appeal  would not be rendered nugatory as the matter  involves  a contract between  the Applicants.

4. When  the application came up for interpartes hearing on 18th March, 2015 , counsel  for the parties entered into a consent that the application  be heard through written submissions and timelines were  given.  By the time today’s ruling date was fixed only the Applicants had filed their submission.  No written submissions have been received by the court from the Respondent by the time this ruling was being prepared.

5. The Applicants have submitted that the application was made without unreasonable delay and that unless the orders of stay of execution pending appeal  are granted, they stand to suffer substantial loss.  The Applicants referred  the court to the case of Peter Ondande T/A Spreawett Chemis –vs- Josephine  Wangari Karanja (2006) eKLR quoted  in Kenya Orient  Insurance  Co. Ltd., -vs- Paul Mathenge Gichuki (2014) eKLR on the three issues  to be considered  by the court in determining  whether or not to grant the application. The Applicants also cited the case of Kisiang’ani Tulienge & 2 others  -v- Paul  Wafula  & 2 others (1998)eKLR on what amounts  to reasonable  time and the following four cases on  the issue of substantial  loss; Ann Wanjiru waigwa & Another –v- Joseph Kiragu Kibarua (2009) eKLR, Tropical Commodities  Suppliers  Ltd & others –v- International  Credit  Bank ltd (in liquidation) (2004) 2 E.A, James  Wangafwa & Another –v- Agnes Naliaka Cheseto (2012) eKLR and Silverstein –v- Chesoni (2002) I. E.A 296.

6. The issue  for determination  before this court is whether the Applicants have established a case for this court to issue  orders restraining the Respondent from alienating land parcel  Bukhayo/Mundika/1537 and staying  the execution  pending  the appeal.

7. The court has considered the grounds  on the application, the Applicants’  written submissions, the record of the court, the supporting and replying affidavit  and found as follows;

a) That the suit  land was Bukhayo/Mundika/1537 and was  registered  in the names  of the 1st and 3rd Applicants on 31st  August, 2013 following a transfer from the 4th and 5th Applicants.

b) That in the event, the orders in the court’s judgment delivered on the 9th July, 2014 are  executed, the result would be to remove the names of 1st and 3rd Applicants from the register of the suit land and restore proprietorship to the 4th and 5th  Applicants’ names.  The orders  did not direct that the suit land be registered  in the names of the Respondent and there is no way the execution  of the orders would cloth  the Respondent  with powers to alienate the suit land.

c) That  as the execution of the orders of 9th July, 2014 would still retain the registration  of the suit land in the names of the two of the Applicants herein, the  court finds there is no possibility of the Respondent interfering  with the legal status of the land without the Applicants knowledge and concurrence. There is therefore no materials presented to support the Applicants allegation that they would or are likely to suffer substantial loss if the orders of 9th July, 2014 are executed.

d) That the Applicants have not presented  any materials to support their allegation that the Respondent  has interfered with the suit land to their detriment. There is nothing to show what the Respondent  has done or threatened to do on the suit that made the Applicants be apprehensive that he intended to sell or dispose the suit land.  The execution  of the orders of 9th July, 2014  is not likely to confer on the Respondent the status of the registered proprietor of the suit land without the Applicants doing so.

e) That as  the court does not issue orders in vain, the court finds no merit in any of the prayers in the application dated 6th August, 2014.  The application  is therefore dismissed  with costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON…2ND….DAY OF  …JULY, …..2015.

IN THE PRESENCE OF;

PLAINTIFF………………………………]………………………………………..

1ST DEFENDANT/APPLICANT ………  ]……………………………………….

3RD DEFENDANT/APPLICANT………   ]…………ABSENT.…………………

4TH DEFENDANT/APPLICANT………    ]……………………………………..

5TH DEFENDANT/APPLICANT…………]………………………………………

COUNSEL……MR. FWAYA FOR ONSONGO FOR PLAINTIFF/RESPONDENT AND MR. ASHIOYA FOR MAKOKHA  FOR KIRUNDI & CO. ADVOCATE  FOR DEFENDANTS/APPLICANTS.