Thomas Mutere Kusienya v Jamin Juma Wekesa & 12 others [2021] KEELC 1066 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELCC No. 65 OF 2013

THOMAS MUTERE KUSIENYA…............................................…...PLAINTIFF

VERSUS

JAMIN JUMA WEKESA AND 12 OTHERS...............................DEFENDANTS

RULING

1. Judgment was delivered in this matter on 26th September 2018 by N.A. Matheka J. The plaintiff’s suit was struck out with costs to the defendants. Subsequently, the plaintiff filed Notice of Motion dated 17th March 2020 seeking the following orders:

a) There be stay of execution of the judgement and or decree and all consequential orders and proceedings herein pending the hearing and determination of KISUMU C.A.C.A NO. 157 OF 2018.

b) Costs of this application be in the cause.

2. The application is supported by an affidavit sworn by the plaintiff. He deposed that he filed KISUMU C.A.C.A NO. 157 of 2018 being an appeal against the judgment herein. That his appeal has overwhelming chances of success and that it is in the interest of justice that he be granted the orders sought.

3. Jamin Juma Wekesa, the 1st defendant, opposed the application through a replying affidavit in which he deposed that the defendants are in possession of the suit property and that they will suffer substantial loss if stay is granted. That the Court of Appeal dismissed a similar application for stay on 5th March 2021 in KISUMU C.A.C.A NO. 157 of 2018.

4. The application was canvassed through written submissions. Only the applicant filed submissions.

5. Although the 1st defendant asserted that a similar application for stay of execution pending appeal had been dismissed by the Court of Appeal, none of the parties exhibited a copy of the ruling. If indeed the issue of stay of execution of the judgment has been determined by the Court of Appeal, I would have to down my tools as is demanded by Section 7 of the Civil Procedure Act.

6. Despite the parties’ failure to provide the necessary information as regards the status in the Court of Appeal, I am not entirely helpless. Under Section 19of theNational Council for Law Reporting Act, 1994all superior courts are required to, as soon as practicable after delivering a judgment, ruling or an opinion, cause a copy of it to be furnished to the editor of the Kenya Law Reports for publishing in the Kenya Law Reports pursuant to Section 3of the Act.

7. A perusal of the Kenya Law Reports reveals a ruling of the Court of Appeal reported as Thomas Mutere Kusienya v Jamin Juma Wekesa & 12 others [2021] eKLR, being a ruling on “An application for stay of execution pending the hearing and determination of an appeal from the judgment and decree of the Environment and Land Court of Kenya at Kakamega (N. A. Matheka, J.) dated 26th September, 2018 in Kakamega ELC Case No. 65 of 2013”. The court sated as follows in the ruling which was delivered on 5th March, 2021:

[1] The instant Notice of Motion, dated 29th June, 2020 is taken out by Thomas Mutere Kusienya (the applicant). He is seeking an order of stay of execution of the judgment delivered on 28th September, 2018 in Kakamega ELC No 65 of 2013 (N. A. Matheka J.,) …

[8] The applicant having not demonstrated how an appeal from a negative order striking out a suit will be rendered nugatory, we have come to the conclusion that the motion dated 29th June, 2020 cannot succeed and is for dismissal. We make no order as to costs since the motion was not opposed.

8. I therefore agree with the 1st defendant that the issue of whether or not the judgment herein could be stayed pending appeal has been determined by the Court of Appeal. In the circumstances Notice of Motion dated 17th March 2020 offends Section 7of theCivil Procedure Act and is therefore res judicata. I strike it out with costs to the 1st defendant.

Dated, signed and delivered at Kakamega this 9th day of November 2021.

D. O. OHUNGO

JUDGE

Delivered in open court in the presence of:

Mr Akwala for the Plaintiff/Applicant

No appearance for the 1st Defendant/Respondent

No appearance for the 2nd to 13th Defendants/Respondents

Court Assistant: E. Juma