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    Civil Appeal (Application) No. 761 of 2022

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    Civil Appeal (Application) No. 761 of 2022

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    appeal aplication

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    1 views8 pages

    Civil Appeal (Application) No. 761 of 2022

    Uploaded by

    lavendamutai1738
    appeal aplication

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    © All Rights Reserved
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    IN THE COURT OF APPEAL

    AT NAIROBI

    (CORAM: OMONDI, LAIBUTA & ALI-ARONI, JJ.A.)

    CIVIL APPEAL (APPLICATION) NO. 761 OF 2022

    BETWEEN

    JOSEPH NGUGI NDUATI ……......…………..…………. 1ST APPLICANT

    NANCY GATHONI …………………………………….….… 2ND APPLICANT

    STEPHEN G. KIARIE ……………………………….…….. 3RD APPLICANT

    AND

    CHARLES ADAVACHI MALENYA ……....……...… 1ST RESPONDENT

    NAIROBI CITY COUNCIL ………………………....… 2ND RESPONDENT

    (An application for stay of execution of the Judgment and


    Decree of the Environment and Land Court at Nairobi (S.
    Okong’o, J.) delivered on 10th November, 2021

    in

    ELC Case No. 1453 of 2002)


    ********************

    RULING OF THE COURT

    1. Before this Court is a notice of motion dated 4th November 2022,


    brought under rule 5(2) (b) of the Court of Appeal Rules,
    seeking the following prayers:

    Page 1 of 8
    (a) That pending the lodging, hearing and
    determination of the Applicant’s appeal, there be
    stay of execution of the decree dated 6th June, 2022
    and any other further proceedings in Milimani ELC
    Suit No. 1453 OF 2002; and

    (b) That the costs of this application be provided for.

    2. In order to contextualize the application, it is necessary to give a


    background in summary. The 1st respondent, who was the
    plaintiff in the trial court, filed a plaint dated 5th September 2002,
    seeking a declaration that the purported registration of L.R No.
    Nairobi/Block 63/316 to the 1st applicant, the 1st defendant
    therein, was unlawful; an order directing that the said
    registration be cancelled by the Registrar of Lands; and an
    injunction restraining the applicants herein from transferring,
    constructing or in any manner dealing with the suit property
    until final determination of the suit. Alternatively, he sought
    compensation for the full market value of the suit property and
    costs.

    3. The suit was opposed. The 1st applicant averred that he was the
    lawful owner of the suit property, having been allocated by the
    2nd respondent and, thereafter, sold the property to the 2nd and
    3rd applicants. He denied all allegations of fraud.

    4. In its judgement, the trial court found that the purported


    allotment of the suit property by the 2nd respondent to the 1st
    applicant was irregular and unlawful. The court further found
    Page 2 of 8
    that, in the absence of evidence that the 1st applicant accepted
    the allotment, paid the requisite charges and issued with a lease
    by the 2nd respondent, then the certificate of lease held by the
    applicant could only be fraudulent, the same having been issued
    without due process. The court found the 1st respondent to be
    the lawful beneficial owner of the suit property and ordered the
    Chief Land Registrar to rectify the register by cancelling the
    registration of the 1st applicant. Further, the court granted a stay
    for 90 days within which the 2nd and 3rd applicants were to pay
    the 1st respondent the market value of the suit property, failing
    which the stay orders would automatically lapse.

    5. The application before us is supported by the grounds set out on


    the face of it, namely that the judgement by the trial court was
    rendered on 10th November 2012, a notice of appeal lodged on
    26th November 2021 and the letter bespeaking the proceedings
    filed on 29th of November, 2021; that typed proceedings delayed
    and a certificate of delay issued on 14th June, 2022; that this
    court extended time within which the appeal was to be filed on
    21st October 2022; that the respondent has applied to quash the
    said ruling with an aim of executing the trial court’s judgement;
    and that the appeal has arguable issues.

    6. In an undated affidavit sworn by the 1st applicant, he rehashes


    the grounds in support of the application, in addition, he states
    that the appeal is arguable and has high chances of success and,

    Page 3 of 8
    unless the 1st respondent is restrained, the whole substratum of
    the appeal will be destroyed, thereby rendering the intended
    appeal nugatory.

    7. The applicant’s learned counsel filed written submissions dated


    8th December 2022. However, it is evident that learned counsel
    does not appreciate the principles required to be satisfied to
    merit orders of stay of execution or injunctive relief pursuant to
    rule 5(2) (b) of this Court’s Rules. Instead, counsel dwells on the
    threshold for stay or injunctive relief applicable in the High Court
    under 0rder 42 Rule 6(3) of the Civil Procedure Rules, which
    are not applicable in this instance, we shall therefore not
    belabour them.

    8. In opposition, the 1st respondent filed a replying affidavit through


    its appointed Attorney, Emmanuel Malenya, who deposed that
    prayer for stay of further proceedings is misplaced as the matter
    was determined and concluded to its finality; that the
    memorandum of appeal does not raise any triable issue and only
    consists of blanket assertions that the learned Judge failed to
    consider their pleadings; that the 1st respondent’s counsel had
    at some point written to the applicant’s lawyers in pursuit of the
    payment option and even proposed Tyson valuers; and that the
    orders directed to the Chief Lands Registrar to rectify the register
    are not reversible and, even if the register were to be rectified,
    that would not render the appeal nugatory.

    Page 4 of 8
    9. Learned counsel for the 1st respondent filed written submissions
    dated 13th March 2023 wherein he reiterated the facts deposed
    to in the replying affidavit. Further, he made reference to the
    case of Kenlink Global Limited & 2 Others vs. Paramount
    Universal Bank Limited (2021) eKLR.

    10. The principles that apply in applications under rule 5(2) (b) of
    this Court’s Rules for stay of execution pending appeal or
    intended appeal have long been settled. To be successful, an
    applicant must first show that the appeal (or intended appeal) is
    arguable and not merely frivolous. Secondly, the applicant must
    show that the appeal, or the intended appeal, if successful, would
    be rendered nugatory if stay orders are not granted. These
    principles have been enunciated in various judicial
    pronouncements of this Court, including those cited by the
    parties.

    11. We note that the applicants sought stay of execution of the decree
    and stay of further proceedings, but did not state the basis for
    seeking stay of proceedings in the suit, bearing in mind that the
    suit was heard and judgment delivered, we need shall therefore
    not delve into that prayer.

    12. The application is brought under Rule 5(2) (b) of this Court’s
    Rules which provide that:
    “(2) Subject to sub-rule (1), the institution of an
    appeal shall not operate to suspend any sentence
    or to stay execution, but the court may:
    Page 5 of 8
    (a) ……

    (b) In any civil proceedings, where a notice of


    appeal has been lodged in accordance with
    rule 75, order a stay of execution, an
    injunction or a stay of any further proceedings
    on such terms as the court may think just.”

    13. In Stanley Kangethe Kinyanjui vs. Tony Ketter & Others


    2013] eKLR this Court stated follows:

    “That in dealing with Rule 5(2) (b), the court exercise


    original and discretionary jurisdiction and that
    exercise does not constitute an appeal from the
    judge’s discretion to this court.

    The first issue for our consideration is whether the


    intended appeal is arguable. This court has often
    stated that an arguable ground of appeal is not one
    which must succeed but it should be one which is not
    frivolous, a single arguable ground of appeal would
    suffice to meet the threshold that an intended appeal
    is arguable.”

    In Attorney General vs. Okiya Omitata Okoiti & Another


    [2019] eKLR the Court stated:
    “The principle for our consideration in the exercise of
    an unfettered discretion under Rule 5(2) (b) to grant an
    order for stay are now well settled. Firstly, an
    applicant has to satisfy that he/she has an arguable
    appeal. However, this is not to say that it must be an
    appeal that will necessarily succeed, but suffice to
    state that it is an appeal that is not frivolous and/or
    idle. Secondly, an applicant has to demonstrate that
    unless an order of stay is granted the appeal or
    intended appeal should be rendered nugatory.”

    Page 6 of 8
    14. On the first limb of the twin principles, in Anne Wanjiku Kibe
    vs. Clement Kungu Waibara & IEBC [2020] eKLR this Court
    held that for stay orders to issue, the applicant must
    demonstrate that the appeal or intended appeal would, in the
    absence of stay be rendered nugatory. This brings us to the
    question whether the intended appeal arguable.

    15. We have carefully considered the arguments of the applicants


    on the question whether the appeal raises arguable grounds.
    To answer that question, it is important to note that most of
    the grounds in the memorandum of appeal all point towards
    the learned Judge’s failure to consider either their joint
    statement of defence, their submissions or their evidence.
    Additionally, the grounds simply rehash the orders issued by
    the trial court, and state that the learned Judge erred by
    granting them. From a cursory reading of the memorandum of
    appeal, there is no single ground that would, in our view, be
    arguable.

    16. In view of the foregoing, we are not persuaded that the applicant
    has raised any arguable grounds in this application. We say no
    more lest we embarrass the bench that will ultimately pronounce
    itself on the merits of the appeal. The applicant having failed to
    satisfy the first limb of the twin principle for grant of orders under
    rule 5(2) (b), we consider it unnecessary to pronounce ourselves
    on the 2nd limb.

    Page 7 of 8
    17. Consequently, the applicants’ notice of motion dated 4th
    November, 2022 fails and is hereby dismissed with costs to the
    respondents.

    Dated and delivered at Nairobi this 23rd day of February, 2024.

    H. A. OMONDI

    .................................
    JUDGE OF APPEAL

    DR. K. I. LAIBUTA

    .................................
    JUDGE OF APPEAL

    ALI-ARONI

    .................................
    JUDGE OF APPEAL

    I certify that this is a


    true copy of the original.

    Signed

    DEPUTY REGISTRAR.

    Page 8 of 8

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