Applicants Case
The applicant defendant (No. 9 ) herein seeks orders that he be granted leave to appeal to the Court of Appeal against the Ruling delivered on 14th March, 2024. That the Notice of appeal already filed on 28th March, 2024 and hereby annexed to this Application be deemed as properly filed upon grant of leave by court.Moreover, that there be a Stay of further proceedings in this matter pending the hearing and determination of the intended interlocutory appeal before the court of appeal. Lastly, that the Honorable-Court be pleased to grant a preservatory order to maintain the prevailing Status Quo to the effect that the Applicant\'s occupation and tenure of employment covering 278.5 Acres on the suit parcel Title No. I.R. 14607 being L.R. NO. 8669/3 in Mau Narok (Muthera Farm) measuring approximately 4296 Acres shall not be interfered with pending hearing and determination of the Applicant\'s intended Appeal before the court of Appeal. The costs of this application be provided for.
The applications is based on grounds that the Honorable Court delivered a Ruling on 14th March, 2024 while dismissing the Applicant\'s Notice of Motion dated 3rd March, 2023. The 9th Defendant/ Applicant having been aggrieved by the said impugned Ruling of the court would wish to exercise his undoubted right of Appeal and therefore resulting in this Application mainly seeking for Leave to Appeal against the said ruling. The Applicant has already lodged a Notice-of-Appeal for purposes of giving intention to appeal before the court of appeal and which notice of appeal was lodged on 28th March, 2024.
Still on 28th March, 2024 the applicant through his advocate on record sought for certified copies of the proceedings and ruling for purposes of instituting the record of appeal without delay.
According to the applicant, the intended appeal is arguable and has high chances of success on the basis that the learned trial judge in his Ruling of 14th March, 2024 erred on numerous matters of law and fact, firstly by failing to appreciate that the 9th Defendant/Applicant had wrongly been impleaded on the basis that he was under employment on behalf of the Estate of Paul Mbatia Mbiyu Koinange (deceased) to be engaged on 278.5 Acres within the suit parcel L.R NO.8669/3 in Mau Narok, ( Muthera Farm) measuring Approximately 4.296 Acres and thus by virtue of his employment the applicant could not be deemed as a trespasser or intermeddler.
Again, the learned trial judge erred in law by failing to make a finding that the plaintiffs suit disclosed no cause of action against the 9th defendant/applicant since the plaintiffs had not presented any evidence to challenge the employment of the applicant as a farm manager on the suit parcel L.R No.8669/3 in Mau Narok ( Muthera Farm).
It is imperative for the court to also grant an order for Stay of Proceedings in the case so as to forestall any other adverse orders or directions against the 9th Defendant as he seeks to prosecute his intended appeal considering that the case is scheduled for mention on 22nd May, 2024 so as to take directions on hearing of the main suit.
It would be an optimal utilization of Judicial time if the court were to grant an order for Stay of proceedings since if the intended appeal were to succeed in the absence of a stay, then it would be very difficult to undo the damage occasioned or to recoup the time lost on account of a barren venture.
That it is important for the court to order that the prevailing status—quo is maintained regarding the Applicant\'s occupation and tenure of employment covering 278.5 Acres on the suit parcel Title No, IR. 14607 being LR NO, 8669/3 in Mau Narok (Muthera Farm) measuring approximately 4296 Acres.
In order to prevent substantial loss from being occasioned on the applicant and so that the appeal is not rendered nugatory, the court should issue a preservatory order for maintenance of the current prevailing \"status quo\" pending hearing and determination of the intended appeal.
The application herein will not occasion any prejudice to the plaintiff/respondents as the position prevailing at the time of filing suit will not be altered whereas a final or just determination of the issues between parties will be made upon hearing the appeal.
It would be in the wider interests of justice if the orders sought for are granted so that a miscarriage of justice does not arise. The supporting affidavit reiterates the grounds.
Responce
In the replying affidavit, Eddah Wanjiku Mbugua states that the judgement on distribution of the estate of the late Mbiyu Koinange was delivered on 7th May 2020, almost four (4) years ago. That the judgement distributed the assets of Mbiyu Koinange among them Muthera farm the subject of this suit. That upon survey and subdivision of the Muthera farm, the applicants invaded the 800 acres earmarked for sale and they have also invaded the farms owned by the beneficiaries and leases them to third parties.
That out of the 278 acres she was allocated by the court the 7th and 8th applicants have invaded and leased 200 acres to third parties. She has written to the third parties asking them to vacate her parcel of land but they have refused since they paid money to the 7th and 8th Applicants. That prior to the invasion of her portion of land, she had leased it to some farmers who were tilling it but they have been chased away by the 7th and 8th defendant\'s and they have forcefully taken over her portion of the suit property without her permission.
The purported Title held by the 7th & 8th applicants is a forgery and they cannot be allowed to disenfranchise the entire estates and deny them the right to the subject property on account of a forged document. That the 7th and 8th applicants are not deserving of any orders since they are hell bent on taking over the entire Muthera farm and selling or leasing out to third parties at the expense of the rightful owners.
That there is no prejudice to the applicants since the Court of Appeal and the High court have already ruled on the issue of ownership of Muthera farm and have distributed it to the beneficiaries of the Estate of Mbiyu Koinange. The applicants have also invaded and leased out to third parties the portion off the suit parcel of land bequeathed to the Estate of the late Isaac Njunu Mbiyu and also the entire parcels bequeathed to David Njunu Koinange, and the late Elizabeth Waruinu Mbiyu, George Kihara Mbiyu . That the estate has reserved its right to seek compensation from the 7th,8th and 9th defendants for the loss of use and mesne profits for the illegal occupation of the land.
That the applicants have threatened the lives and person of the beneficiaries who have resisted their move to take over their parcels of land.
She contends that the surveyors who surveyed and sub divided the land on the strength of the court order issued on 7th may 2020 will attest to the fact that at the time of survey and sub division , the applicants were not on the land the document of Title they hold does not exist in the department of lands. The applicants\' in seeking to have preservatory orders issued are seeking the court to aide them to take away over 2000 acres of land belonging to the estate of Mbiyu Koinange which they have occupied illegally and are leasing out to third parties after chasing away the rightful owners.
She asserts that as an administrator of the estate of Mbiyu Koinange, it is my duty and obligation to protect the interest of all the beneficiaries and they have been crying to her over the invasion of their parcels of land by the 7th and 8th applicants.There is no good reason advanced why the proceedings herein should be stayed as this will only allow the applicants to continue to disenfranchise the beneficiaries of the estate and embolden the applicants who are holding a fake Title to the 800 acres earmarked for sale by the court.
She contends that the applicants are not entitled to leave to Appeal against the ruling delivered by this court as they have not demonstrated any arguable appeal and they should allow this court to hear the matter to its conclusion without staying proceedings in this matter. That the applicants have confirmed that they have illegally occupied the subject piece of land to the exclusion of the rightful owners and despite the orders issued by the High court and the court of appeal confirming the ownership of Muthera farm as being an asset of the late Mbiyu Koinaange. That any orders of status quo and / or presevatory orders will occasion grave injustice to the entire estate of Mbiyu Koinange as the applicants will take over the entire Muthera farm and evict the rightful owners.
According to the respondent, the applicants have no right to be on the suit parcel of land and are attempting to grab the land through the back door and the preservatory orders sought are similar to the injunction they had sought and which the court refused to grant. She prays this court exercises its power and orders the applicants to move out of Muthera farm and specifically to stop leasing out portions of and allocated to the beneficiaries to third parties.
ANALYSIS AND DETERMINATION
I have considered the application, affidavits and record and rival submissions and do find three issues of determination.
1. Whether leave to appeal should be granted
2. Whether notice to appeal should be deemed as duly filed.
3. Whether stay of proceedings should be ordered.
4. Whether an order of status quo should be granted.
On whether leave to appeal should be granted, Section 75(1) of the Civil Procedure Act provides for the orders against which an appeal would lie as of right and/or with the leave of the court. It provides thus:
75(1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted-
(a) An order superseding an arbitration where the award has not been completed within the period allowed by the court;
(b) An order on an award stated in the form of a special case;
(c) An order modifying or correcting an award;
(d) An order staying or refusing to stay a suit where there is an agreement to refer to arbitration;
(e) An order filing or refusing to file an award in an arbitration without the intervention of the court;
(f) An order under section 64;
(g) An order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;
(h) Any order made under rules from which an appeal is expressly allowed by rules.
Order 43 Rule (1) of the Civil Procedure Rules sets out the orders and rules in respect of which appeals would lie as of right. Under Order 43(2) it is provided that an appeal shall lie with the leave of the court from any other order made under the Rules. This means that unless the order sought to be appealed against falls under the orders which are appealable as of right under Order 43(1) leave to appeal must be obtained before such an appeal can be preferred. The procedure for obtaining leave is provided under Order 43(3) which states as follows:-
(3) An application for leave to appeal under Section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.
I do find that this court has jurisdiction to grant leave to appeal moreover, the application was filed timeously and that the applicant has some reasonable grounds of appeal on the issue as to whether he was a trespasser or not and therefore I do grant leave to appeal.
On the issue of stay of proceedings, the applicant argues that stay is necessary for optimal utilization of judicial time because if the intended appeal was to succeed in absence of stay, it would be very difficult to undo the damage occasioned without resulting in additional litigation. In this matter I do agree with the respondent that the applicant should give the court a chance to adjudicate on the merits of the dispute and allow the case to proceed. The applicant has not demonstrated that the appeal shall be rendered nugatory or any substantial loss will occur if the matter proceeds for hearing.
On the issue as to whether the notice of Appeal should be deemed as duly filed, I do find that the application was filed timeously and therefore there is no reason why the Notice of Appeal should not be deemed as duly filed.
On the issue of grant of preserving orders of status quo I do find that there is no evidential value in the affidavit that the application has a prima facie case with a likehood of success and that he is likely to suffer irreparable loss if an order of injunction is not granted and therefore the said order cannot be granted.
The upshot of the above is that, I do hereby grant the applicant leave to appeal against the ruling delivered on 14th March 2024 and do allow the notice of appeal herein as duly filed. I do decline to grant stay of proceedings pending appeal or any order of status quo or Injunction. Half costs to respondent.
Ruling dated signed and delivered electronically at Nakuru this 26th Day of September, 2024
The applicant defendant (No. 9 ) herein seeks orders that he be granted leave to appeal to the Court of Appeal against the Ruling delivered on 14th March, 2024. That the Notice of appeal already filed on 28th March, 2024 and hereby annexed to this Application be deemed as properly filed upon grant of leave by court.Moreover, that there be a Stay of further proceedings in this matter pending the hearing and determination of the intended interlocutory appeal before the court of appeal. Lastly, that the Honorable-Court be pleased to grant a preservatory order to maintain the prevailing Status Quo to the effect that the Applicant\'s occupation and tenure of employment covering 278.5 Acres on the suit parcel Title No. I.R. 14607 being L.R. NO. 8669/3 in Mau Narok (Muthera Farm) measuring approximately 4296 Acres shall not be interfered with pending hearing and determination of the Applicant\'s intended Appeal before the court of Appeal. The costs of this application be provided for.
The applications is based on grounds that the Honorable Court delivered a Ruling on 14th March, 2024 while dismissing the Applicant\'s Notice of Motion dated 3rd March, 2023. The 9th Defendant/ Applicant having been aggrieved by the said impugned Ruling of the court would wish to exercise his undoubted right of Appeal and therefore resulting in this Application mainly seeking for Leave to Appeal against the said ruling. The Applicant has already lodged a Notice-of-Appeal for purposes of giving intention to appeal before the court of appeal and which notice of appeal was lodged on 28th March, 2024.
Still on 28th March, 2024 the applicant through his advocate on record sought for certified copies of the proceedings and ruling for purposes of instituting the record of appeal without delay.
According to the applicant, the intended appeal is arguable and has high chances of success on the basis that the learned trial judge in his Ruling of 14th March, 2024 erred on numerous matters of law and fact, firstly by failing to appreciate that the 9th Defendant/Applicant had wrongly been impleaded on the basis that he was under employment on behalf of the Estate of Paul Mbatia Mbiyu Koinange (deceased) to be engaged on 278.5 Acres within the suit parcel L.R NO.8669/3 in Mau Narok, ( Muthera Farm) measuring Approximately 4.296 Acres and thus by virtue of his employment the applicant could not be deemed as a trespasser or intermeddler.
Again, the learned trial judge erred in law by failing to make a finding that the plaintiffs suit disclosed no cause of action against the 9th defendant/applicant since the plaintiffs had not presented any evidence to challenge the employment of the applicant as a farm manager on the suit parcel L.R No.8669/3 in Mau Narok ( Muthera Farm).
It is imperative for the court to also grant an order for Stay of Proceedings in the case so as to forestall any other adverse orders or directions against the 9th Defendant as he seeks to prosecute his intended appeal considering that the case is scheduled for mention on 22nd May, 2024 so as to take directions on hearing of the main suit.
It would be an optimal utilization of Judicial time if the court were to grant an order for Stay of proceedings since if the intended appeal were to succeed in the absence of a stay, then it would be very difficult to undo the damage occasioned or to recoup the time lost on account of a barren venture.
That it is important for the court to order that the prevailing status—quo is maintained regarding the Applicant\'s occupation and tenure of employment covering 278.5 Acres on the suit parcel Title No, IR. 14607 being LR NO, 8669/3 in Mau Narok (Muthera Farm) measuring approximately 4296 Acres.
In order to prevent substantial loss from being occasioned on the applicant and so that the appeal is not rendered nugatory, the court should issue a preservatory order for maintenance of the current prevailing \"status quo\" pending hearing and determination of the intended appeal.
The application herein will not occasion any prejudice to the plaintiff/respondents as the position prevailing at the time of filing suit will not be altered whereas a final or just determination of the issues between parties will be made upon hearing the appeal.
It would be in the wider interests of justice if the orders sought for are granted so that a miscarriage of justice does not arise. The supporting affidavit reiterates the grounds.
Responce
In the replying affidavit, Eddah Wanjiku Mbugua states that the judgement on distribution of the estate of the late Mbiyu Koinange was delivered on 7th May 2020, almost four (4) years ago. That the judgement distributed the assets of Mbiyu Koinange among them Muthera farm the subject of this suit. That upon survey and subdivision of the Muthera farm, the applicants invaded the 800 acres earmarked for sale and they have also invaded the farms owned by the beneficiaries and leases them to third parties.
That out of the 278 acres she was allocated by the court the 7th and 8th applicants have invaded and leased 200 acres to third parties. She has written to the third parties asking them to vacate her parcel of land but they have refused since they paid money to the 7th and 8th Applicants. That prior to the invasion of her portion of land, she had leased it to some farmers who were tilling it but they have been chased away by the 7th and 8th defendant\'s and they have forcefully taken over her portion of the suit property without her permission.
The purported Title held by the 7th & 8th applicants is a forgery and they cannot be allowed to disenfranchise the entire estates and deny them the right to the subject property on account of a forged document. That the 7th and 8th applicants are not deserving of any orders since they are hell bent on taking over the entire Muthera farm and selling or leasing out to third parties at the expense of the rightful owners.
That there is no prejudice to the applicants since the Court of Appeal and the High court have already ruled on the issue of ownership of Muthera farm and have distributed it to the beneficiaries of the Estate of Mbiyu Koinange. The applicants have also invaded and leased out to third parties the portion off the suit parcel of land bequeathed to the Estate of the late Isaac Njunu Mbiyu and also the entire parcels bequeathed to David Njunu Koinange, and the late Elizabeth Waruinu Mbiyu, George Kihara Mbiyu . That the estate has reserved its right to seek compensation from the 7th,8th and 9th defendants for the loss of use and mesne profits for the illegal occupation of the land.
That the applicants have threatened the lives and person of the beneficiaries who have resisted their move to take over their parcels of land.
She contends that the surveyors who surveyed and sub divided the land on the strength of the court order issued on 7th may 2020 will attest to the fact that at the time of survey and sub division , the applicants were not on the land the document of Title they hold does not exist in the department of lands. The applicants\' in seeking to have preservatory orders issued are seeking the court to aide them to take away over 2000 acres of land belonging to the estate of Mbiyu Koinange which they have occupied illegally and are leasing out to third parties after chasing away the rightful owners.
She asserts that as an administrator of the estate of Mbiyu Koinange, it is my duty and obligation to protect the interest of all the beneficiaries and they have been crying to her over the invasion of their parcels of land by the 7th and 8th applicants.There is no good reason advanced why the proceedings herein should be stayed as this will only allow the applicants to continue to disenfranchise the beneficiaries of the estate and embolden the applicants who are holding a fake Title to the 800 acres earmarked for sale by the court.
She contends that the applicants are not entitled to leave to Appeal against the ruling delivered by this court as they have not demonstrated any arguable appeal and they should allow this court to hear the matter to its conclusion without staying proceedings in this matter. That the applicants have confirmed that they have illegally occupied the subject piece of land to the exclusion of the rightful owners and despite the orders issued by the High court and the court of appeal confirming the ownership of Muthera farm as being an asset of the late Mbiyu Koinaange. That any orders of status quo and / or presevatory orders will occasion grave injustice to the entire estate of Mbiyu Koinange as the applicants will take over the entire Muthera farm and evict the rightful owners.
According to the respondent, the applicants have no right to be on the suit parcel of land and are attempting to grab the land through the back door and the preservatory orders sought are similar to the injunction they had sought and which the court refused to grant. She prays this court exercises its power and orders the applicants to move out of Muthera farm and specifically to stop leasing out portions of and allocated to the beneficiaries to third parties.
ANALYSIS AND DETERMINATION
I have considered the application, affidavits and record and rival submissions and do find three issues of determination.
1. Whether leave to appeal should be granted
2. Whether notice to appeal should be deemed as duly filed.
3. Whether stay of proceedings should be ordered.
4. Whether an order of status quo should be granted.
On whether leave to appeal should be granted, Section 75(1) of the Civil Procedure Act provides for the orders against which an appeal would lie as of right and/or with the leave of the court. It provides thus:
75(1) An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted-
(a) An order superseding an arbitration where the award has not been completed within the period allowed by the court;
(b) An order on an award stated in the form of a special case;
(c) An order modifying or correcting an award;
(d) An order staying or refusing to stay a suit where there is an agreement to refer to arbitration;
(e) An order filing or refusing to file an award in an arbitration without the intervention of the court;
(f) An order under section 64;
(g) An order under any of the provisions of this Act imposing a fine or directing the arrest or detention in prison of any person except where the arrest or detention is in execution of a decree;
(h) Any order made under rules from which an appeal is expressly allowed by rules.
Order 43 Rule (1) of the Civil Procedure Rules sets out the orders and rules in respect of which appeals would lie as of right. Under Order 43(2) it is provided that an appeal shall lie with the leave of the court from any other order made under the Rules. This means that unless the order sought to be appealed against falls under the orders which are appealable as of right under Order 43(1) leave to appeal must be obtained before such an appeal can be preferred. The procedure for obtaining leave is provided under Order 43(3) which states as follows:-
(3) An application for leave to appeal under Section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.
I do find that this court has jurisdiction to grant leave to appeal moreover, the application was filed timeously and that the applicant has some reasonable grounds of appeal on the issue as to whether he was a trespasser or not and therefore I do grant leave to appeal.
On the issue of stay of proceedings, the applicant argues that stay is necessary for optimal utilization of judicial time because if the intended appeal was to succeed in absence of stay, it would be very difficult to undo the damage occasioned without resulting in additional litigation. In this matter I do agree with the respondent that the applicant should give the court a chance to adjudicate on the merits of the dispute and allow the case to proceed. The applicant has not demonstrated that the appeal shall be rendered nugatory or any substantial loss will occur if the matter proceeds for hearing.
On the issue as to whether the notice of Appeal should be deemed as duly filed, I do find that the application was filed timeously and therefore there is no reason why the Notice of Appeal should not be deemed as duly filed.
On the issue of grant of preserving orders of status quo I do find that there is no evidential value in the affidavit that the application has a prima facie case with a likehood of success and that he is likely to suffer irreparable loss if an order of injunction is not granted and therefore the said order cannot be granted.
The upshot of the above is that, I do hereby grant the applicant leave to appeal against the ruling delivered on 14th March 2024 and do allow the notice of appeal herein as duly filed. I do decline to grant stay of proceedings pending appeal or any order of status quo or Injunction. Half costs to respondent.
Ruling dated signed and delivered electronically at Nakuru this 26th Day of September, 2024