Titus Ng’ang’a Kamuyu v Joseph Gitagia Mutheki & Mutheki Muchonjoru [2020] KEELC 2617 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAKURU

CASE NO. 44 OF 2014

TITUS NG’ANG’A KAMUYU......................................................PLAINTIFF

VERSUS

JOSEPH GITAGIA MUTHEKI........................................1ST DEFENDANT

MUTHEKI MUCHONJORU.............................................2ND DEFENDANT

RULING

1. This ruling is in respect of two applications: plaintiff’s Notice of Motion dated 16th August 2019 and 1st defendant’s Notice of Motion dated 11th September 2019.

2. Notice of Motion dated 16th August 2019 seeks the following orders:

1. THAT an order for eviction of the judgment debtor from parcel of land known as Bahati/Engorusho Block 1/8 to issue to be executed by Ms Legacy Auctioneering Services.

2. THAT the officer commanding station (OCS) Bahati Police Station do provide security to Legacy Auctioneering Services while undertaking the said eviction.

3. THAT the said eviction complies with section 152E and 152G of the Land Act.

4. Costs of this Application be provided for.

3. On the other hand, the following orders are sought in Notice of Motion dated 11th September 2019:

1. …

2. …

3. THAT pending the hearing and determination of the appeal file in the Court of Appeal, there be a stay of execution of the decree herein.

4. THAT costs of this application to abide in the outcome of the appeal.

4. I will deal first with the application for stay since its outcome will have a direct bearing on orders to be made in respect of plaintiff’s Notice of Motion dated 16th August 2019. The application for stay is supported by an affidavit sworn by the 1st defendant. He deposed that there is a pending application for his eviction following the judgment delivered on 3rd May 2018. He added that he will be highly prejudiced and the appeal rendered nugatory. The plaintiff opposed the application through a replying affidavit sworn by his advocate, Mr George Kirumba Mbiyu. He deposed that the 1st defendant has approached the court with unclean hands and that no prejudice will be occasioned to him if stay is not granted.

5. Parties agreed that the two applications be determined purely on the basis of the affidavits on record. I have carefully considered the application for stay and the affidavits on record in respect of it. The application is brought under Order 42 rule 6of the Civil Procedure Rules, 2010 which provides:

6. (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2) No order for stay of execution shall be made under sub rule (1) unless—

(a) 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

(b) 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.

6. A litigant seeking stay of execution pending appeal under the foregoing rule must satisfy the court that substantial loss will result to him if stay is not granted and that the application has been made without unreasonable delay. As Platt Ag JA (as he then was) stated inKenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR, substantial loss is the corner stone of the jurisdiction to grant stay of execution pending appeal.

7. It must be remembered that Order 42 rule 6 (4) provides that for the purposes of the rule, an appeal to the Court of Appeal shall be deemed to have been filed when notice of appeal has been given. The 1st defendant has stated at ground 3 of the application that he has filed a notice of appeal against the judgment delivered on 3rd May 2018 but he has not annexed a copy of it. Further, he has made no mention of appealing against the judgment within the body of his supporting affidavit. Instead, he has focused in the affidavit on a ruling delivered by this court on 15th July 2019. A perusal of the record does not reveal any notice of appeal in respect of the judgment.

8. By the judgment delivered on 3rd May 2018, this court ordered as follows:

a. The 1st defendant and his agents or servants to vacate the parcel of land known as Bahati/Engorusha Block 1/8 within 30 (thirty) days of service upon him of these orders.  In default, the 1st defendant and his agents or servants be evicted from the aforesaid property.  The eviction to be done in accordance with the provisions of Section 152 G of the Land Act, 2012.

b. I make no order as to costs of the suit.

9. After delivery of the judgment the 1st defendant filed an application dated 7th September 2018 through which he sought stay of execution of the decree herein as well as setting aside of the decree. The application was heard and dismissed in a ruling delivered on 15th July 2019. I see on record a notice of appeal in respect of the ruling, filed on 22nd July 2019. I will give the 1st defendant the benefit of doubt and assume that the appeal he is referring to is in respect of the ruling delivered on 15th July 2019. Since the judgment ordered his eviction, I agree that substantial loss will result to him if stay is not granted as he will be evicted before he gets an opportunity attempt to persuade the Court of Appeal to reverse the ruling delivered on 15th July 2019 and possibly the judgment. As regards security, party and party costs should be taxed right away and I’ll order that the taxed costs be deposited in court as security. Further, I note that typed and certified proceedings for purposes of the appeal have been ready from as far back as 15th August 2019. The filing of the record of appeal and prosecution of the appeal ought to be expedited.

10. Regarding Notice of Motion dated 16th August 2019, it is axiomatic that the orders sought therein flow directly from the judgment. Barring any stay of execution, those orders should issue.

11. In the result, I make the following orders:

a. I hereby grant stay of execution of the judgment and decree herein pending hearing and determination of an appeal in the Court of Appeal against this court’s ruling delivered on 15th July 2019.

b. Costs of this application are awarded to the plaintiff.

c. The stay is conditional on the 1st defendant depositing in court such sum as will be determined as the party and party costs of this suit.

d. The deposit to be made within 21 (twenty one) days of the costs being taxed. In default, the stay orders shall automatically lapse and Notice of Motion dated 11th September 2019 shall stand dismissed with costs to the plaintiff.

e. In the event Notice of Motion dated 11th September 2019 is dismissed in terms of (d) above:

i. An order for eviction of the 1st defendant (judgment debtor) and his agents or servants from parcel of land known as Bahati/Engorusha Block 1/8 shall automatically issue, to be executed by Ms Legacy Auctioneering Services.

ii. The officer commanding station (OCS) Bahati Police Station to in that event provide security to Legacy Auctioneering Services while undertaking the said eviction.

iii. The said eviction to comply with section 152G (d) to (h) of the Land Act, 2012.

iv. Costs of Notice of Motion dated 16th August 2019 shall in that event still be to the plaintiff.

f. The stay orders shall, if the applicants timeously comply with the condition in (d) above, remain in force for a period of only 2 (two) years from the date of delivery of this ruling, unless otherwise extended.

12. This ruling is delivered remotely through video conference and e-mail pursuant to the Honourable Chief Justice's “Practice Directions for the Protection of Judges, Judicial Officers, Judiciary Staff, other Court Users and the General Public from the Risks Associated with the Global Corona Virus Pandemic” (Gazette Notice No. 3137 published in the Kenya Gazette Vol. CXXII—No. 67 of 17th April, 2020).

Dated, signed and delivered at Nakuru this 7th day of May 2020.

D. O. OHUNGO

JUDGE