Introduction
1. On 23rd October 2024, this court dismissed the plaintiffs suit and allowed the 30th defendant’s counterclaim.
2. In dismissing the plaintiffs’ suit and allowing the 30th defendant’s counterclaim, this court inter alia stated/held:-
48.“Whilst the plaintiffs claim that Kibor Arap Talai took possession of the suit property immediately after he purchased it in 1981, the totality of the evidence produced shows that the late Kibor Arap Talai did not take possession of the suit property after he bought it. That fact is made clear by the letters produced in evidence by the 30th defendant, dated 9th January 1985 (Dexbt 5); 27th May 2009 (Dexbt 6) and 9th October 2014 (Dexbt 7)
50.The contents of the above quoted letters show that the late Eric Kaino Cheserek and his family were in possession of the suit property, continued being in use and possession of the suit property even after the same was bought by the late Kibor Arap Talai in a public auction.
51.Despite having been registered as the proprietor of the suit property, the late Kibor Arap Talai never filed any recovery suit against Erick Kaino Cheserek or his estate within the time provided in law for recovery of his interest in the land. That being the case, he lost his right to institute a suit for recovery of the suit property after 12 years lapsed. For that reason, I agree with the 30th defendant’s submissions that the plaintiff’s suit is time barred having been filed way after the time provided in law for filing a recovery suit expired.
52.The 30th defendant led evidence showing that Erick Kaino’s occupation of the suit property has been open, continuous and peaceful.
53.The plaintiffs have neither pleaded that the occupation of the suit property by the late Erick Kaino was with the permission of the owner nor led any evidence indicating or even suggesting that the possession, use and occupation of the suit property by Erick Kaino Cheserek and his family members was on account of permission granted by Kibor Arap Talai or them.
54.It is trite law that upon expiry of 12 years, the late Eric Kaino Cheserek and/or his estate became entitled to the suit property on account of having been in adverse possession thereof. The totality of the evidence adduced in this suit shows that the estate of the late Eric Kaino Cheserek has been in possession and use of the suit property for a period exceeding the 12 years prescribed by law for acquiring an interest in land registered in the name of another person. The totality of the evidence also shows that the possession has been open, peaceful and as of right.
55.The plaintiffs’ claim that the defendants entered the suit property in 2016 is not supported by the totality of the evidence.
56.In view of the foregoing, I find and hold that the plaintiffs have not made up a case for being granted the orders sought. The 30th defendant, on the other hand, has proved that the estate of the late Erick Kaino Cheserek has become entitled to the suit property on account of having been in adverse possession thereof. Consequently, I dismiss the plaintiffs’ suit with costs and enter judgment in favour of the 30th defendant as sought in the counterclaim.”
3. Dissatisfied with the decision/judgment of this court, the plaintiffs preferred an appeal against the decision/judgment.
4. The plaintiffs also filed the notice of motion dated 15th November 2024 through which they inter alia seek an order of stay of implementation and execution of the judgment of this court pending the hearing and determination of :-
i. The application (spent);
ii. The appeal.
5. The application is undefended.
Analysis and determination
6. It is not in dispute that the appellants are not the ones currently in use and occupation of the suit property; the only additional prejudice that the appellants may suffer if the judgment of this court is executed by the successful litigant, the 30th respondent, is that, if the suit property is transferred to the successful litigant and a title deed issued to him, the successful litigant may deal with the suit property in a manner that may prejudice and/or compromise the interest of the appellants in the property should they succeed in the appeal.
7. In considering an application for stay pending appeal, this court is obligated to balance the rights of the successful litigant with those of the appellant who has doubted right of appeal. In balancing those rights, the order that comments itself, in the circumstances of this case, is to maintain the status quo which prevailed before the plaintiffs filed the suit herein, which is that the the defendants were in use and possession of the suit property while the suit property was registered in the name of Kiboi Arap Talai.
8. Consequently, I order that the aforementioned status be maintained by the parties to this application pending the hearing and determination of the appeal.
9. Under Order 42 Rule 6 of the Civil Procedure Rules, the person seeking an order of stay pending appeal is under a legal obligation to furnish security for performance of such obligation as may be binding on him arising from the appeal. Regarding that legal imperative, I order the applicants to, within 21 days from the date of delivery of this ruling, deposit Kshs. 100,000/- in a joint interest earning account to be opened in the names of the advocates for the parties being security for costs. failing which the order of maintenance of status quo shall stand vacated without further reference to court and the application be deemed to have been dismissed.
10. As the application is unopposed, I make no order as to costs.
11. Orders accordingly.
Dated, signed and delivered this 18th day of February, 2025.
Ruling read virtually in the presence of:-
- Mr. Kibii for the Applicant.
- Mr. Ndaiwa holding brief for Mr. Kiarie for the Respondent.
- Ian, CA