1. By a notice of motion application dated 24th April 2024, brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Orders 40 Rule 1, 42 Rule 6, 51 Rule 1 of the Civil Procedure Rules and Article 159 of the Constitution and all other enabling provisions of the law, Obadiah Kipkurui Yator (hereinafter referred to as the applicant), seeks the following orders:-
1. Spent
2. Spent
3. That there be stay of execution of the judgment/decree of this court and further, there be temporary injunction against the respondents by themselves, servants, agents, employees and/or any person claiming under them from trespassing onto, encroaching into, staying upon, working, developing, constructing or building onto or otherwise dealing in any manner with land parcel NO. Baringo/Sabatia-103/875 pending the hearing and determination of the appeal herein;
4. That there be a temporary injunction against the 4th respondent, his servants, agents, employees and/or any person working under him from cancelling the Applicant’s title deed in respect of land parcel No. Baringo/Sabatia/531 and its subdivisions, Baringo/Sabatia/103/874 and Baringo/Sabatia/103/875 pending the hearing and determination of the appeal;
5. That the honourable court be pleased to issue any other order as it may deem just, appropriate and expedient in the interest of justice;
6. That costs of the application be provided for.
2. The application is premised on the grounds on its face. It is supported by the affidavit of the applicant, sworn on 24th April 2024, in which the grounds on the face of the application are reiterated.
3. The grounds on the face of the application and the affidavit sworn in support thereof are as follows:-
i) That on 16th January 2023, the lower court delivered a judgment against the applicants and in favour of the 1st respondent whom it found to be the lawful owner of land parcel number LR No. Baringo/Sabatia/531 and the subdivisions therefrom namely LR No. Baringo /Sabatia-103/874 and Baringo/Sabatia-103/875;
ii) That the court determined that the 1st respondent bought the parcels of land in question, LR No. Baringo /Sabatia-103/874 and Baringo/Sabatia-103/875, from the 2nd respondent’s son and directed that the applicant’s title deed be cancelled;
iii) That the applicant was granted 30 days stay of execution which period lapsed on 14th February 2023;
iv) That being dissatisfied with the judgment of the court delivered on 16th January 2023, the applicant preferred the instant appeal and filed a Memorandum of Appeal dated 9th February 2023;
v) That an application dated 13th February 2023 seeking stay of execution and injunction orders was filed at the lower court;
vi) That the 2nd and the 3rd respondents sold part of the suit property during the pendency of the application dated 13th February 2023;
vii) That after he knew about sale of a portion of the suit property, he filed an application for contempt of court against the 2nd and 3rd respondents in this application which application was dismissed by the lower court on 22nd January 2024;
viii) That the delay in filing the instant application was occasioned by absence of the applicant who was away on training making it difficult for his counsel to contact him for instructions;
ix) That the instant appeal has high chances of success and
x) That the appellant is likely to suffer substantial and irreparable loss unless the orders sought are granted.
4. The applicant further deponed that the appeal may be rendered nugatory unless the orders sought are granted; that he is willing to furnish such security as the court may deem just and fit as a condition for issuance of the orders sought and that he stands to suffer irreparable loss if the application is not allowed.
5. The application is unopposed.
6. Despite the application being unopposed, the burden is on the applicant to satisfy the court that he has made up a case for being granted the orders sought. In that regard, see Section 107 of the Evidence Act, Cap 80 Laws of Kenya which provides as follows:-
“1. Whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove that those facts exist
2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”.
7. Also see the case of CMC Aviation Ltd vs. Cruisair Ltd (No.1) (1987)KLR 103 where it was held:-
“The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments defend on evidence for proof of their contents”
8. On whether the applicant has discharged the burden placed on him of satisfying the court that the orders sought should be issued in his favour, I begin by pointing out that the applicant has combined the prayer for stay with the prayer for temporary injunction. Because the two reliefs are provided for under different provisions of the law and the principles of law which underpin grant of such reliefs are different, it is the considered view of this court that the two reliefs cannot sit in the same prayer. In view of the foregoing, I find and hold that the relief sought in prayer 3 of the applicant’s application, dated 24th April, 2024 is incapable of being granted.
9. With regard to prayer 4, which is for a temporary injunction, for the applicant to be granted an order of temporary injunction, he must satisfy the condition that underguard grant of such a relief that is proof that he has a prima facie case with high probability of success; that unless the order of temporary injunction is granted, he may suffer irreparable harm and if the court is in doubt, it will determine the matter on a balance of convenience. Such considerations are unavailable to an appellant as appeals are dealt with under Order 42 of the Civil Procedure Rules and not under Order 40 of the Civil Procedure Rules which deals with injunctions.
10. Moreover, the Suit property was sold pursuant to a judgment issued in favour of the respondents. There is no proof that in selling the suit property or a portion thereof, the respondent acted in breach of any court order issued in favour of the applicant. The persons who bought the suit property gained interest in the suit properties pursuant the impugned sale. The buyers stand to be affected by the orders sought yet they are not parties to the application. A court of law cannot issue orders that will adversely affect third parties without giving them an opportunity to be heard.
11. The upshot of the foregoing is that the applicant has not made up a case for being granted the orders sought. Consequently, I dismiss the application with no orders as to costs as it was undefended.
12. Orders accordingly.
Dated, signed and delivered at Kabarnet this 15th day of July 2024
Ruling read virtually in the presence of;-
N/A for the appellant/applicant
Ms. Kiget holding brief for Mr. Arusei for the 1st respondent
Mr. Sirma holding brief for Mr. Kipkenei for the 2nd & 3rd respondents
Court Asst.: Ian