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JudgmentGABRIEL CHERUIYOT VS RICHARD ONSANDO AND ABEL MORANGA ONSANDO9 min read

GABRIEL CHERUIYOT VS RICHARD ONSANDO AND ABEL MORANGA ONSANDO

Environment and Land Court at Kilgoris Environment and Land Court · · E. M. WASHE, J

RULING

  1. The Appellant (hereinafter referred to as “the Applicant”) approached this Court by way of a Notice of Motion Application dated 17th July 2023 (hereinafter referred to as “the present application”) seeking for the following orders; -
  2. Pending the hearing and determination of the instant application, the Honourable Court be pleased to grant an interim order of stay of execution of the judgement and decree of the Honourable Magistrate Court in KILGORIS MCELC CASENO. 36 OF 2018 between the parties in this Appeal issued on the 3rd of March 2022 together with all other consequential orders arising therefrom.
  3. The Honourable Court be pleased to grant an order of stay of execution of the judgement and decree of the Honourable Magistrates Court in KILGORIS MCELC CASE NO.36 OF 2018 dated and delivered on the 3rd of March 2022 between the parties in this Appeal together with all consequential orders pending the hearing and determination of this Appeal.
  4. Costs of this Application do abide the outcome of the Appeal.
  5. Such other and/or further orders are granted as this Honourable Court may deem fit and expedient.
  6. The prayers sought hereinabove are supported by grounds outlined in the present application as well as the supporting affidavit sworn by the Applicant on the 17/07/2022 which can be summarised as follows; -
  7. The Applicant herein is the registered owner of the property known as LR.NO.TRANSMARA/MOYOI/400.
  8. However, the 1st and 2nd Respondents who are the registered owners of the property known as LR.NO.TRANSMARA/MOYOI/403 filed proceedings known as KILGORIS MCELC NO.36 OF 2018 against the Applicant seeking for an eviction order and a permanent injunction thereof.
  9. The proceedings known as KILGORIS MCELC CASE NO. 36 OF 2018 were heard and determined on the 3rd of March 2022.
  10. The Applicant being aggrieved by the judgement and decree issued on the 03/03/2022 in the proceedings known as KILGORIS MCELC CASE NO. 36 OF 2018 is now desirous of appealing against the whole judgement and decree.
  11. The Applicant submits that any execution and/or enforcement of the judgement and decree issued in the proceedings known as KILGORIS MCELC CASE NO.36 OF 2018 will cause substantial loss and further render the Appeal nugatory.
  12. Consequently therefore, the Applicant is seeking for stay of execution of the entire judgement and decree issued on the 03.03.2022 pending the hearing and determination of the Appeal before this Honourable Court.
  13. The Applicant further pleads that there will be no prejudice occasioned to the Respondents if an order of stay pending appeal is issued herein.
  14. The present Application was duly served on the Respondents who filed a Joint Replying Affidavit sworn on the 04.08.2023.
  15. The Respondents opposed the present Application on the following grounds; -
  16. The Applicant herein has brought the present application after an inordinate delay as the judgement and decree he seeks to appeal was pronounced on the 03.03.2022 while application for stay pending appeal was filed on the 25.07.2023 which is over 1 year later.
  17. Secondly, the Respondents were of the view that the Applicant had not complied with the directions relating to costs awarded in the proceedings known as KILGORIS MCELC CASE NO.36 OF 2018 and therefore should not be entertained by this Honourable Court.
  18. Lastly, the Respondents were of the view that the Applicant had not complied with the provisions of Order 42 Rule 6 of the Civil Procedure Rules and the principles guiding the granting of a stay order and therefore the present Application ought to be dismissed with costs.
  19. The parties were directed to canvass the present application by way of written submissions.
  20. The Applicant duly filed his submissions on the 30.10.2023 but unfortunately, there were now filed submissions by the Respondent by the time the Court retreated to write this ruling.
  21. The Honourable Court has indeed perused the present Application together with the supporting affidavit therefore, the Joint Replying Affidavit and the submissions therein and the only issue for determination is whether or not the Applicant is entitled to an order of Stay pending Appeal.
  22. An application for stay pending appeal has been provided for under Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 and states as follows; -

“No order for stay of execution shall be made under Sub-Rule (1) unless; -

  1. 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
  2. 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.
  3. In the case of RWW v EKW [2019] eKLR, the Court expressed itself as follows; -

“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.

  1. However, to enable the Court exercise its discretion to grant an order for Stay of execution pending appeal, three key ingredients must be considered which are as discussed below.
  2. INGREDIENT 1- SUBSTANCIAL LOSS.
  3. The first ingredient to be discussed is whether the Applicant will suffer any substantial loss if the order for stay of execution is not issued pending the hearing and determination of the Appeal.
  4. Consequently, the first question is whether there is an Appeal before this Honourable Court pending for hearing from the judgement and decree being appealed against.
  5. In the present file, the Applicant indeed filed a Memorandum of Appeal on the 22.04.2022 and the substantive Record of Appeal on the 14.11.2022.
  6. The Memorandum of Appeal dated 22.04.2022 is what is now pending the hearing and determination before this Honourable Court.
  7. However, the Applicant submits that as this Memorandum of Appeal is pending the hearing and determination, this Honourable Court should confirm the interim orders issued on the 17.07.2023.
  8. According to the Applicant’s submission, he is the registered owner of the property known as LR.NO.TRANSMARA/MOYOI/400.
  9. On the other hand, the Respondents herein are the registered owners of the neighbouring property known as LR.NO.TRANSMARA/MOYOI/403.
  10. The judgement and decree issued on the 03.03.2022 in the proceedings known as KILGORIS MCELC CASE NO.36 OF 2018 direct the Applicant to vacant and/or be evicted from the Respondent’s property known as LR.NO.TRANSMARA/MOYOI/403.
  11. However, the Applicant states that he is not within the property known as LR.NO.TRANSMARA/MOYOI/403 but instead his property known as LR.NO.TRANSMARA/MOYOI/400.
  12. The Applicant’s submission is that the Land Registrar’s Report clearly pointed out that there was no trespass occasioned to the Respondents on their property known as LR.NO.TRANSMARA/MOYOI/403 as each party was within the demarcated boundaries in the respective mutations.
  13. In other words, if the Respondents were to proceed and evict the Applicant, then it would mean his houses and/or other improvements would be demolished and render him a destitute.
  14. On the other hand, the Respondents have not denied that they intend to execute the judgement and decree dated 03.03.2022.
  15. Secondly, the Respondents have also not denied that if the execution of the judgement and decree dated 03.03.2022 is executed, it will cause substantial loss to the Applicant.
  16. In the case of JAMES WANGALWA & ANOTHER-VERSUS- AGNES NALIAKA CHESETO (2012) eKLR, the Court observed as follows about substantial loss; -

“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

  1. Turning to the facts of the present Application, it is not denied that the Applicant is the registered owner of the property known as LR.NO.TRANSMARA/MOYOI/400.
  2. The Applicant states that his occupation on the property known as LR.NO.TRANSMARA/MOYOI/400 is within the demarcation boundaries of the said property as envisaged in the Mutations.
  3. According to the Ground Report filed on the 12.02.2018 by the Land Registrar’s office, it specifically stated that there were no clear identifiable boundaries between the properties known as LR.NO.TRANSMARA/MOYOI/400 and LR.NO.TRANSMARA/MOYOI/403.
  4. Since the filing of the Ground Report by the Land Registrar on the 12.02.2018, there is no evidence that the boundary markings between the properties known as LR.NO.TRANSMARA/MOYOI/400 and LR.NO.TRANSMARA/MOYOI/403 were ever demarcated thereafter.
  5. It is therefore clear in the mind of this Honourable Court that any execution of the judgement and/or decree issued on the 03.03.2022 by the Respondents in enforcing their rights over the property known as LR.NO.TRANSMARA/MOYOI/403 would not be guided by any properly demarcation boundaries and/or marking.
  6. The fact that the execution of the judgement and/or decree issued on the 03.03.2022 by the Respondents will require the demolition of the Applicant’s developments, this Honourable Court is satisfied that such an action would cause substantial loss to the Applicant if not irreparable loss for the Applicant will be rendered a destitute in the event such demolition is not in line with the demarcation boundaries in the mutations submitted by the Land Registrar.
  7. The issue of the boundary demarcation and/or marking is an important issue for determination before the Respondents can proceed and enjoy the fruits of their judgement.

INGREDIENT NO. 2- IF THE APPLICATION HAS BEEN MADE EXPEDICIOUSLY.

  1. On the face of the present Application, the date of which it was filed is 25.07.2023.
  2. The Respondents are of the view that the present Application was filed about 12 months after the judgement and decree dated 03.03.2022 was pronounced in KILGORIS MCELC CASE NO. 36 OF 2018.
  3. In other words, there has been an inordinate delay by the Applicant to seek the orders in the present suit.
  4. While indeed the date of filing the present application is 25.07.2023 while the judgement and decree were issued on the 03.03.2022, the proceedings both in the lower Court shows to the contrary.
  5. According to the proceedings in the file known as KILGORIS MCELC CASE NO.36 OF 2018, this is not the first application for stay that has been made by the Applicant.
  6. On the date which the trial Court in KILGORIS MCELC CASE NO.36 OF 2018 pronounced its judgement and decree on 03.03.2022, it issued a stay of execution for a period of 90 days thereof.
  7. This stay of execution issued on the 03.03.2022 was extended further on the 20.06.2023 for a period of 30 days.
  8. Before the lapse of the 30 days provided by the Orders of 20.06.2023, the Applicant made this present Application on the 25.07.2023 and obtained the interim orders issued on the 25.07.2023.
  9. In essence therefore, the Applicant has always been prompt in seeking for the appropriate stay orders since the judgement and decree was issued on the 03.03.2022 and can not be accused to be filed the same after an inordinate delay.

INGREDIENT NO.3- SECURITY.

  1. The third and last ingredient is the requirement for security.
  2. In the present suit, the security can only be for the costs awarded in the Trial Court as the subject matter is not a liquidated amount but an eviction order.
  3. This being the case, this Honourable Court is of the considered view that a security for costs amounting to Kenya Shillings Fifty Thousand (KShs 50,000/-) would suffice for security.

CONCLUSION.

  1. In conclusion therefore, this Honourable Court makes the following orders in determination of the Notice of Motion Application dated 17.07.2023; -
  2. THE APPLICATION DATED 17.07.2023 IS MERITED.
  3. THAT PENDING THE HEARING AND DETERMINATION OF THE PRESENT APPEAL, THE JUDGEMENT AND DECREE ISSUED ON THE 03.03.2022 IN THE PROCEEDINGS KNOWN AS KILGORIS MCELC CASE NO. 36 OF 2018 BE AND ARE HEREBY STAYED INCLUDING THE EXECUTION OF THE SAID ORDERS THEREIN.
  4. THE APPLICANT IS DIRECTED TO DEPOSIT A SUM OF KSHS 50,000/- AS SECURITY FOR COSTS WITHIN THE NEXT 14 DAYS FROM THE DATE OF THIS RULING.
  5. THE COSTS OF THE PRESENT APPLICATION WILL ABIDE THE OUTCOME OF THE SUBSTANTIVE APPEAL.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 13TH OF MARCH 2024.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATES FOR THE APPLICANT: MR. SHIRA

ADVOCATES FOR THE RESPONDENT: MR. OKEMWA

    GABRIEL CHERUIYOT VS RICHARD ONSANDO AND ABEL MORANGA ONSANDO GABRIEL CHERUIYOT VS RICHARD ONSANDO AND ABEL MORANGA ONSANDO