Zacharia Kiburi M’Tharanju v Jacob M’Manyara [2021] KEELC 1192 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELCA NO. E048 OF 2021

ZACHARIA KIBURI  M’THARANJU ……………………… APPELLANT

VERSUS

JACOB M’MANYARA ………………..…………………….. RESPONDENT

(Being an appeal from the Judgment of Hon. G. Sogomo (P.M.) delivered on 18th March, 2020, in Tigania P.M. E&L No. 53 of 2017)

RULING

1. The applicant has brought an application dated 28. 2.2021 seeking stay of execution of the ruling delivered on  18. 3.2021 in Tigania P.M. E&L 53 of 2017pending hearing and determination of the appeal lodged on 24. 3.2021.

2. The application is supported by grounds on the face of it and a replying affidavit sworn on 25. 3.2021. The appellant argues the lower court overlooked Meru HC Succession cause No. 82 of 2002 decisionand went ahead to give orders whose effect was to amend or nullify a confirmed grant.

3. It is the appellant’s contention that if the decree or order is implemented, the respondent shall gain more  land than on the ground hence prays for stay of execution.

4. The appellant filed written submissions dated 15. 10. 2021 and stresses the doctrine of stare decises.

5. The application is opposed by a replying affidavit sworn on 20th April, 2021. It was the contention  the respondent is that the judgment was given on 21. 11. 2019. Thereafter the appellant brought an application for review which was dismissed on 18. 3.2021.  He maintaines he has been in occupation of the suit land since 2002.

6. Further the respondent relies on written submissions dated 15. 10. 2021 reiterating that there were no  substantive orders capable of execution or implementation granted by the court hence the application lacks merit.

7. For an application for stay to succeed, an applicant has to satisfy three conditions, namely substantive loss, no unreasonable delay in bringing the application and lastly offer for security for the due performance of the decree.

8. In Victory Construction –vs- BM (a minor suing through next friend one PMM (2019) eKLRthe court held that stay may only be granted for sufficient cause and that the overriding objective under Section 1A, 1B of the Civil Procedure Act and Article 159 (2) (c) of the Constitution must also be considered in terms of just determination of proceedings, efficient disposal of suits, prudent use of judicial and administrative resources and timely disposal of suits at a cost effective manner.

9. In Century Oil Trading Co. Ltd –vs- Kenya Shell Ltd (2008) eKLRthe court held substantial loss must mean something in addition to ordinary loss of a case; and that there must be balance between the  interests of the applicant and the successful party.  The court further held a party must not merely assert substantial loss, but must also demonstrate it with adequate and proper evidence.

10. The court has gone through the lower court file, the judgment adopting the alternative dispute resolution award made on 21. 11. 2019 and the review order of 18. 3.2021.  It is apparent the appeal herein arises out of an order made under Order 45 of the Civil Procedure Rules. Under Section 75 of the Civil Procedure Act such an order is only appealable with leave of the court making it.

11. In this file, there is no indication the appellant sought for and obtained leave to appeal to this court.  The appellant had initially failed to extract and attach the order or decree to the application for review. If the same had not been extracted then and has not been attached hereto, this court is not convinced, there is imminent danger of execution and or implementation of the lower court decree.  The respondent has submitted that he is in occupation of one acre of the suit land since 2002 with full knowledge of the appellant.

12. Turning to the judgment delivered on 21. 11. 2019 there is no pending appeal against the said judgment.  Guided by the reasoning in Jaber Mohsen & Another (2014) eKLR,I find the application has been made late in the day so as to deny the respondent a chance to enjoy fruits of his judgment.

13. Coming to the third aspect of security a successful party is entitled to enjoy fruits of his judgment and if not an applicant for stay of execution must show  willingness to give an assurance that there will be due performance of the decree eventually either way the appeal goes; as a mark of good faith. See Focin Motorcycle Co. Ltd –vs- Ann Wambui Wangui & Another (2018) eKLR.

14. In the instant case no offer  has been made to furnish security.

15. The upshot is that the applicant has failed to meet the criteria to grant the  orders of stay.  The application dated 28. 3.2021 is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 3RD  DAY OF NOVEMBER, 2021

In presence of:

Mutisya for respondent

Ndubi for appellant

Court Clerk: Kananu

HON. C.K. NZILI

ELC JUDGE