William Isaboke Onsare v Benjamin Kakuti Kisilu [2021] KEELC 4236 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NYAHURURU

E.L.C. NO. 457 OF 2017 (OS)

WILLIAM ISABOKE ONSARE.......................................PLAINTIFF

VERSUS

BENJAMIN KAKUTI KISILU........................................DEFENDANT

[CONSOLIDATED WITH E.L.C NO. 458 OF 2017]

MARY WAMBUI NDUNG’U...........................................PLAINTIFF

VERSUS

BENJAMIN KAKUTI KISILU.................................1ST DEFENDANT

WILLIAM ISABOKE ONSARE............................2ND DEFENDANT

BENEDICT ONYANCHA......................................3RD DEFENDANT

RULING

A.  THE 1ST PLAINTIFF’S APPLICATION

1.  By a notice of motion dated 13th December 2019 brought under the provisions of Order 42 Rule 6 (1), 2 (1) (a) and (b) of the Civil Procedure Rules 2010 (the Rules) and all enabling provisions of the law, the 1st Plaintiff William Isaboke Onsare, sought a stay of execution of the judgment and decree dated 22nd November, 2019 pending the hearing and determination of his intended appeal to the Court of Appeal.

2.  The said application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by the 1st Plaintiff on 13th December, 2019 and the annextures thereto.  It was contended that he stood to suffer substantial loss if he was evicted from the suit property during the pendency of his appeal; that the appeal might be rendered nugatory if the decree were to be executed; and that it was in the interest of justice that a stay should be granted.

B.  THE 2ND PLAINTIFF’S RESPONSE TO THE APPLICATION

3.  The 2nd Plaintiff, Mary Wambui Ndung’u, filed a replying affidavit sworn on 18th February, 2020 in opposition to the said application.  It was contended that the application was misconceived, untenable and that it did not satisfy the requirements for granting a stay of execution.  It was further contended that there was inordinate delay in fling the instant application hence the same should be dismissed.

4.  The 2nd Plaintiff further contended that upon delivery of the judgment she extracted the decree on 20th November, 2019 and lodged it for registration before the County Land Registrar – Nyandarua and as such the decree had already been executed.  It was further contended that the 1st Plaintiff had in violation of the decree cultivated crops and erected a fence on the suit property.  It was disputed that the 1st Plaintiff would suffer any irreparable loss or damage since he was not resident on the suit property.  The court was, therefore urged to dismiss the application.

C.  DIRECTIONS ON SUBMISSIONS

5.  When the application was listed for hearing on 27th May, 2020 it was directed that the same shall be canvassed through written submissions.  The record shows that the 1st Plaintiff filed his submissions on 15th September, 2020 whereas the 2nd Defendant filed hers on 6th July, 2020.  The rest of the parties do not appear to have filed any response or submissions to the application.

D. THE QUESTION FOR DETERMINATION

6.  The court has considered the 1st Plaintiff’s notice of motion dated 13th December, 2019 together with the supporting affidavit and annextures thereto, the replying affidavit in opposition thereto as well as the material on record.  The court is of the opinion that the main question for determination is whether or not the 1st Plaintiff has satisfied the requirements for the grant of an order for stay of execution pending appeal.

E.  ANALYSIS AND DETERMINATION

7.  The 1st Plaintiff’s application is predicated upon Order 42 Rule 6 (2) of the Rules which stipulates as follows:

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

(a)the courtis 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 courtorders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

8.  The main requirements under Rule 6(2)are that the Applicant must demonstrate substantial loss and that the application must be made without undue delay.  The court has considered the material and submissions on record on the issue of substantial loss.  The 1st Plaintiff claimed that he was residing on part of the suit property and that he had a building thereon.  He also claimed to be cultivating some crops thereon.  He exhibited some photographs which appeared to show some crops and a building in the background.

9.  Although the 2nd Plaintiff disputed the 1st Plaintiff’s occupation of part of the suit property, the court is satisfied from the totality of the material on record that the 1st Plaintiff has been in occupation of part of the suit property (however small) whereas the 2nd Plaintiff appears to be in possession of a substantial portion of the same property.

10. On the basis of the material on record the court is of the opinion that the 1st Plaintiff shall suffer substantial loss should he be evicted and uprooted from his home before his intended appeal is heard and determined.  The court is further of the opinion that there is a risk of the intended appeal being rendered nugatory should the suit property become unavailable upon determination thereof.  Accordingly, the court is satisfied that the 1st Plaintiff has satisfied the requirement of demonstrating substantial loss.

11. It was contended by the 2nd Plaintiff that the application had been overtaken by events because the decree had already been extracted and lodged for registration at the lands office.  The court has fully examined the material on record and finds no evidence of execution of the decree.  The material on record simply shows that the decree and transfer forms were lodged for registration but there is no evidence of registration of the transfer.

12. The 2nd Defendant contended that the application for stay should be declined on the basis of undue delay in filing it.  It was contended that although the judgment was delivered on 22nd October, 2019 the instant application was not filed until 13th December, 2019 which resulted in a delay of about one and a half months.

13. The court is of the opinion that although there was some delay in filing the application, the same was minimal.  It was not such delay as can be considered unreasonable within the meaning of Order 42 Rule 6 (2) of the Rules.  There is also no evidence on record to show that the 2nd Plaintiff suffered any prejudice as a result of such slight delay.  Accordingly, the court finds and holds that there was no unreasonable delay in filing the application for stay.

F.  CONCLUSION AND DISPOSAL

14. The upshot of the foregoing is that the court finds merit in the 1st Plaintiff’s application for stay pending appeal.  Accordingly, the court marks the following orders for disposal of the application:

(a)  There shall be a stay of execution of the decree dated 22nd October, 2019 and all consequential orders for a period of 2 years from the date hereof or until determination of the intended appeal, whichever comes first.

(b)   The 1st Plaintiff, William Isaboke Onsare, shall take steps to file the substantive appeal within 90 days in default of which of the stay granted herein shall lapse.

(c)   In case the suit property has already been transferred to the 2nd Plaintiff by the time of delivery of the ruling the Land Registrar Nyandarua shall register an inhibition preventing any dealings with Title No. Nyandarua/ Kaimbaga/480 for a period of 2 years or until determination of the intended appeal, whichever comes first.

(d)   Costs of the application shall abide the result of the appeal.

Orders accordingly.

RULING DATED and SIGNEDatNYAHURURUand DELIVERED via Microsoft Teams Platform this4th ofFebruary, 2021.

In the presence of:

Ms. Wanjiru Muriithi holding brief for Mr. Nderitu Komu for the Respondent

No appearance by the Plaintiff

Court Assistant - Carol

Y.M. ANGIMA

JUDGE

04. 02. 2021