Vincent Milimu Ashiono v Geoffrey Ashiono Luyundi [2019] KEELC 2582 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELC CASE NO. 356 OF 2013

VINCENT MILIMU ASHIONO.................PLAINTIFF/APPLICANT

VERSUS

GEOFFREY ASHIONO LUYUNDI....DEFENDANT/RESPONDENT

RULING

The application is dated 26th March 2019 and is brought under sections 1A, 3A and 63 (e) of the Civil Procedure Act and order XLI rule 4 of the Civil Procedure Rules seeking the following orders;

1.  That this application be certified urgent and heard ex-parte in the first instance.

2. That pending the hearing and determination of this application, this honourable court be pleased to grant an injunction restraining the defendant, his agents, servants and/or anybody claiming through him from selling, alienating, transferring, disposing of, charging, mortgaging or in any other manner howsoever dealing with the property known as title No. KAKAMEGA/SHIVAKALA/799.

3. That pending the hearing and determination of the plaintiff’s intended appeal, this honourable court be pleased to grant an injunction restraining the defendant, his agents, servants and/or anybody claiming through him from selling, alienating, transferring, disposing of, charging, mortgaging or in any other manner howsoever dealing with the property known as title No. KAKAMEGA/SHIVAKALA/799.

4. That costs of this application be provided for.

It is supported by the annexed affidavit of Vincent Milimu Ashiono and is made on the following grounds that the plaintiff is desirous of filing an appeal against this court’s judgment/decree given on 27th February, 2019 and has lodged and served a notice of appeal. Unless an injunction is granted to preserve the suit property pending the hearing and determination of the intended appeal, the success of the appeal will be rendered nugatory if the suit property is alienated or dealt with by the defendant in any manner adverse to the interests of the deceased’s estate and/or the plaintiff or other beneficiaries of the deceased’s estate. The plaintiff’s intended appeal is arguable and has high chances of success. The plaintiff and/or the deceased’s estate stands to suffer irreparable loss if the injunction is not granted.

The respondent submitted that, the application is incompetent, vexatious unmaintainable and should be dismissed. That the plaintiff/applicant and him, have been having cases in court one of them being this instant one. That this case was heard and a fair and just decision arrived at by the trial judge. That he is a biological child to his father Alphonse Ashiono Limisi and that the parcel of land which is the subject of this suit does not form part of the estate of the said Alphonse Ashiono Limisi as he had transferred it to him when he was alive.  As such, the dependents/heirs of the deceased have not been disinherited of anything. That a petition of appeal has not been filed and as such, the deponent cannot be heard to argue that the appeal has high chances of success.

This court has carefully considered the application and the submissions herein. The principles for granting stay of execution are provided for under Order 42 rule 6 (1) of the Civil Procedure Rules as follows:

“No appeal or a 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 an application being made, to consider such application and to make such orders thereon as may to it seem just, 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 the orders set aside.”

Order 42, rule 6 states:

“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.”

The appellants need to satisfy the Court on the following conditions before they can be granted the stay orders:

1. Substantial loss may result to the applicant unless the order is made.

2. The application has been made without unreasonable delay, and

3. Such security as the Court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant.

The principles governing the exercise of the court’s jurisdiction are now well settled. Firstly, the intended appeal should not be frivolous or put another way, the applicants must show that they have an arguable appeal; and second, this Court should ensure that the appeal, if successful, should not be rendered nugatory. These principles were well stated in the case of Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd – Civil Appl. No. Nai. 93/02 (UR), thus:

“Hitherto, this Court has consistently maintained that for an application under rule 5(2) (b) to succeed, the applicant must satisfy the court on two matters, namely:-

1. That the appeal or intended appeal is an arguable one, that is, that it is not a frivolous appeal,

2. That if an order of stay or injunction, as the case may be, is not granted, the appeal, or the intended appeal, were it to succeed, would have been rendered nugatory by the refusal to grant the stay or the injunction.”

The question of stay pending appeal has been canvassed at length in various authorities, such as in the Court of Appeal decision in Chris Munga N. Bichange Vs Richard Nyagaka Tongi & 2 Others eKLR where the Learned Judges stated the principles to be applied in considering an application for stay of execution as thus:-

“……………. The law as regards applications for stay of execution, stay of proceedings or injunction is now well settled.  The applicant who would succeed upon such an application must persuade the court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous. Secondly, that if the application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory. These two limbs must both be demonstrated and it would not be enough that only one is demonstrated………”

In the case of Mohamed Salim T/A Choice Butchery Vs Nasserpuria Memon Jamat (2013) eKLR, the court stated that:-

“That right of appeal must be balanced against an equally weighty right that of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right …………….”

We are further guided by this court’s decision in Carter & Sons Ltd vs Deposit Protection Fund Board & 2 Others Civil Appeal No. 291 of 1997, at Page 4 as follows:

“ . . . the mere fact that there are strong grounds of appeal would not, in itself, justify an order for stay. . .the applicant must establish a sufficient cause; secondly the court must be satisfied that substantial loss would ensue from a refusal to grant a stay; and thirdly the applicant must furnish security, and the application must, of course, be made without unreasonable delay.”

The applicant submitted that he has preferred an appeal against the decision and or judgment of this honourable court to the Court of appeal at Kisumu. That the said appeal is No. 43 of 2019. That the appeal has overwhelming chances of success. That it is necessary that there be stay of execution of judgment of this honourable pending determination of the appeal. That unless the orders and or prayers herein the appeal shall be rendered nugatory. The applicant submitted that the suit land was family land and his house is on part of it. That the respondent transferred the land fraudulently. They submitted that this matter was part heard before Justice Chacha Mwita who had no jurisdiction. I have perused the court record and on the 11th May 2017 Counsels for both parties by consent agreed to proceed with the matter from where it had reached. The applicant is hence estopped from raising the issue of jurisdiction. I find that the principals of granting a stay as mentioned above have not been established in this matter. The applicant has not established sufficient cause.  I find this application lacks merit and I dismiss it with costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 3RD JULY 2019.

N.A. MATHEKA

JUDGE