1. By a Judgment delivered on 13th June 2024, this court dismissed the appellant (applicant’s) appeal against the decision of Hon. Charles A. Kutwa SPM delivered on 6th September, 2023 in Iten SPM ELC Case No.24 of 2018.
2. Aggrieved by the decision/judgment of this court, the appellant/applicant filed a further appeal to the Court of Appeal.
3. To preserve the subject matter of the suit/appeal to wit the parcel of land known as Kabiemit/Flax Block (Chepkorio)/163 which is registered in his name, the applicant filed a notice of motion application dated 3rd July 2024 through which he urges this court to order that there be a stay of execution of the judgment and the decree of the lower court pending hearing and determination of the appeal to the Court Appeal. The applicant also seeks an order of temporary injunction to restrain the 1st respondent, his servants and/or agents from evicting him from the suit property and/or interfering with his use of the suit property and implementing the decree of the lower court pending the hearing and determination of the appeal.
4. The application is premised on the grounds on its face and supported by the affidavits sworn on 3rd July, 2024.
5. In reply and opposition to the application, the respondent through the replying affidavit he swore on 11th July 2024, contends that the application is meant to evade, delay or otherwise obstruct the course of justice hence tainted by bad faith; that the applicant has not provided sufficient evidence of the loss he stands to suffer if the orders sought are denied and that the appeal is misconceived as it does not raise any arguable points of law.
6. According to the respondent, the appeal is based on facts yet it is a second appeal which ought to be premised on points of law only.
7. The respondent acknowledges that in an application for stay pending appeal like the instant one, this court is called upon to balance the interests of the appellant and the respondent in deciding whether to grant the orders sought and urges this court, if inclined to grant the orders sought, to order the appellant/applicant to deposit in court or in an interest earning account in his name, the costs of the suit in the lower court, this court and the appeal.
8. In a rejoinder, the applicant filed the supplementary affidavit he swore on 24th July, 2024. Through the affidavit, the applicant reiterates the averments contained in his supporting affidavit and denies the respondent’s contention that the appeal is meant to delay or obstruct the respondent in realization of the fruits of his judgment. The applicant has deposed that he has already obtained certified proceedings and compiled a record of appeal ready for filing.
9. Terming the issues raised in the appeal, issues of law warranting a pronouncement by the court of appeal, the applicant urges this court to maintain the status quo obtaining regarding the suit property in order to afford him an opportunity to ventilate his appeal.
10. The applicant has further deposed that he is ready to abide by such conditions as the court may make regarding tendering of security for costs.
11. The application was disposed off by way of written submissions.
12. At the time of writing this ruling the respondent’s submissions were not in the court file and/or e-filing system. The ruling, has therefore, being written without the benefit/consideration of the respondent’s submissions.
Analysis and determination
13. From the application, the response thereto and the submissions by the applicant, the sole issue for the court’s determination is whether the applicant has made up a case for being granted the orders sought. If yes, what orders should the court make as a condition for grant of the orders sought.
14. A review of the judgment of the court appealed from shows that the subject matter of the suit/appeal is land that is currently registered in the name of the applicant. The land was registered in the name of the applicant on 26th August 1998. Since that time, it is the applicant who has been in use and possession of the suit property.
15. Whilst the lower court determined that the respondent had made up a case warranting interference with the applicant’s registration as the proprietor of the suit property by cancellation of the title he holds in respect of the suit property and reverting it to the respondent; which determination was affirmed by this court, in exercise of the duty vested in this court of balancing the right of the respondent as the successful litigant and that of the applicant of being heard on a further appeal to the Court of Appeal, in the circumstances of this case, where the applicant is not only the registered proprietor of the suit property but also the one in use and occupation of the suit property, I am of the view that should this court deny the applicant the reliefs sought; in the event he succeeds in his appeal, he may suffer prejudice that cannot be compensated by award of costs.
16. Although the respondent will be kept away from realization of the fruits of his judgment for the period the appeal will be pending before the Court Appeal, on loss and prejudice, he will can be compensated by award of costs.
17. That being the view of this court on this matter; the instant application having been filed without undue delay, I am inclined to exercise the discretion vested in this court in favour of the applicant, on condition that:
i) The applicant shall, within 21 days from the date of delivery of this ruling, deposit in a joint interest earning account to be opened in the name of his advocate and the advocate of the respondent Kshs. 200,000/= being security for costs and such decree/order as may ultimately be binding on him,
ii) The applicant is also directed to deposit the original title of the suit property in court, within 21 days from the date of delivery of this ruling, as additional security for due purpose of such order as may ultimately be binding on him;
iii) Should the applicant fail to meet any of the conditions set out in (i) and (ii) above, within the time given, the application dated 3rd July 2024 shall automatically stand dismissed with costs.
iv) Costs of the application dated 3rd July 2024 shall abide the outcome of the appeal.
18. Orders accordingly.
Dated, signed and delivered at Iten this 29th day of October 2024.