Susan Wanjiru & Miriam Wanjiru v Lucy Gathoni & Milka Ndunge [2015] KEHC 6055 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

ELC APPEAL 197 OF 2012

SUSAN WANJIRU ………………………………………………… APPELLANT

MIRIAM WANJIRU ……………………………..………………… APPELLANT

VERSUS

LUCY GATHONI ………………………………………………... RESPONDENT

MILKA NDUNGE ……………………….…………………...….. RESPONDENT

RULING

1.     By Notice of Motion dated 13. 1.2012 the Appellant seeks stay of execution of decree under Order 42 Rule 6 of Civil Procedure Rules, 2010.  The same is based on the grounds on the face of the motion and the supporting affidavit of Susan Wanjiru sworn on 17. 10. 2012.  The Applicants’ case is that she filed Kajiado CMCC No.110/08 seeking eviction of Respondents  from suit land No.342 Ongata Rongai Trading Centre inter alia and after hearing of the matter, the court dismissed the claim and instead wanted her to move out of the suit land.

2.    This prompted her to file the instant appeal on 16. 11. 2012 and the instant motion.  The applicant is apprehensive that in view of the court’s judgment she may be evicted before the appeal is heard and determined and thus appeal be rendered nugatory.  Relying on the case of MICRO ENTERPRISES SUPPORT PROGRAMME TRUST REGISTERED TRUSTEES VS. MAYFORD SAVINGS CO-OPERATIVES LTD. AND 5 OTHERS.  The Applicant submits that the discretion in stay for application is exercised to prevent the appeal if successful, from being nurgatory.

3.    The Appellant also cites the conditions for granting of stay of execution under order 42 rule 6 Civil Procedure Rules 2010 namely that application has to be filed expeditiously as judgment was delivered on 30. 12. 2012 and the application was filed on 17. 12. 2012.  On substantial loss to be suffered the applicant submits that since she occupies suit land, she will be inflicted substantial loss by eviction and appeal may be rendered nugatory.  On the providing security, the Appellant avers that she is ready and willing to provide security.

4.    On the Respondent’s side the submission is to the effect that a successful litigant should not be deprived the fruits of their judgment.  The Respondent submits that there is no prove that the Appellant will further substantiate loss in event the orders sought are denied.  In the reverse, the Respondents argue that it is them who will suffer substantial loss as they will be adverse to the Respondents’ rights to property.  They further submit that the judgment dated 30. 12. 2012 is unjustified delay.  They also submit that there is demonstration of ability to furnish security.  Relying on authority of ORIENTAL CONSTRUCTION CO. LTD. VS. RIFT VALLEY WATER SERVICES BOARD HCC 161/2012 submits that the 3 conditions must be fulfilled for stay to be granted but in the instant case threshold for 3 conditions is not demonstrated.  They thus seek for the application to be dismissed with costs.

5.    After going through affidavits and rivaling submissions, I distill the following issues:

1.     Whether the conditions for granting stay pending appeal have been met?

2.    What is the order as to costs?

In ORIENTAL CONSTRUCTION CO. LTD. supra, the court held that the 3 conditions for stay pending appeal must be established, namely;

·       The application is filed expeditiously.

·       The substantial loss will be suffered by the Applicant.

·       There is will and ability to provide security.

6.    On the first limb of the conditions, the application was filed after about one and a half months (30. 10. 2012 to 17. 12. 2012) from the date of judgment.  This court finds same time span not to be inordinate.  The appeal also on the face of it appears to have been filed within time as the period from 30. 10. 12 date of judgment to 16. 11. 2012 when appeal was filed seems to be over a period of one and a half months or thereabout.

7.    Though judgment is erroneously dated 30. 10. 2011, the record shows that it was actually fixed and read on 30. 10. 2012 not 30. 10. 2011.  The delay of 1 ½  months in lodging application is not inordinate in the circumstances of the case and taking to account that this is land matter.

8.    On the limb of substantial loss the court notes that it is not denied that if stay is not granted, the Appellant may be evicted any time.  There is no greater substantial loss one can suffer like one of eviction from a land one has been in occupation for living.  The Applicants aver that they are ready and willing to furnish security if need be.  The court has noted that the entire record and lower court file is ready and the appeal can be heard expeditiously.

9.    The interest of justice dictates that the status quo prevailing be upheld pending hearing and determination of the appeal.  The court thus makes the following orders.

1.     Stay of execution be and is hereby granted as prayed in paragraph 1 of the motion dated 13. 12. 2012.

Datedand Delivered at Machakos, this 13th day of February, 2015.

CHARLES KARIUKI

JUDGE