REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MILIMANI LAW COURTS

ELC CASE NUMBER 67 OF 2019

(FORMERLY CA 542 OF 2019)

TITUS MULANDI KITONGA..............................................1^ST APPELLANT

NASIMU MULANDI KITONGA........................................2^ND APPELLANT

SHEM ONYANGO.............................................................3^RD APPELLANT

VERSUS

HASHTAG BIZ HUB COMPANY LIMITED.........................RESPONDENT

RULING

1. This is a Ruling in respect of an application by the Appellant / Applicants who seek stay of execution of the Ruling and orders of Hon.Mmasi Chief Magistrate dated 11^th September 2019 pending the hearing and determination of an appeal against the said orders. The Applicants also seek orders that the status quo prevailing on the ground before the issuance of those orders be maintained.

2. The brief background leading to the filing of this application is that the Respondent in this application had filed a suit before the lower court against the Applicants in which it sought orders of injunction and specific performance of a sale agreement in respect of LR No. Nairobi/Block Tassia 11-97/0794/088. Contemporaneously with the suit, the Respondent filed an application for injunctive orders.

3. The trial Magistrate heard the application and in a ruling dated 11^th September 2019, she granted the injunction and directed that the OCPD Embakasi Police Station ensures compliance with the order of the court. Aggrieved with the orders, the Applicants filed an appeal to this court against the said orders. It is on this basis that the Applicants are seeking stay of execution pending the hearing and determination of the appeal against the orders of 11^th September 2019.

4. It is the Applicants’ contention that the trial magistrate did not have jurisdiction to grant the orders as the sale agreement the basis upon which the Respondent filed the suit did not comply with section 3(3) of the Law of Contract Act.

5. The Respondent opposed the Applicants’ application based on a replying affidavit sworn on 16^th December 2019. The Respondent contends that it entered into a sale agreement with the Applicants in respect of the suit property which was to be sold to it at Kshs.7,500,000/=. The Respondent paid 5,500,000/= and was granted possession. It started a business of a pub and a garage for a few months after which it leased the premises to a third party who was later evicted for non-payment of rent.

6. The 3^rd Applicant later approached it for lease of the premises but owing to its past experience with the first tenant, it could not agree to lease out the premises to the 3^rd Respondent. The Respondent later learnt that the 1^st and 2^nd Applicants had illegally leased out the premises to the third Respondent. This is the basis upon which it moved to court and obtained the orders which are the subject of the stay. The Respondent contends that there will be no prejudice suffered by the Applicants if the orders are not stayed as they will exercise possession if they succeed in the appeal which they have filed.

7. The parties were directed to file their submissions. I have considered the submissions which the parties filed. I must state at the outset that both parties addressed issues which if I were to address will embarrass the trial court. The appeal which has been filed arises out of an interlocutory application. The main suit is still pending in court. The only issue for me to decide is whether the Applicants have demonstrated that they have an arguable appeal and an arguable appeal is not one which will necessarily succeed.

8. The Applicants do not deny that they entered into a sale agreement with the Respondent. There is also no serious denial that the Respondent was granted possession and that at some stage, the 3^rd Applicant had approached the Respondent with a request to lease out the suit premises to him. For reasons I have stated hereinabove, I do not wish to make final findings on matters which will embarrass the trial court. However, considering the circumstances surrounding this matter, I have not been persuaded that the Applicants have an arguable appeal to warrant grant of stay orders. It is clear that the Respondent had been granted possession. When the 3^rd Applicant failed to secure a lease from the Respondent, he went back to the Applicants who granted him one. The status quo which should prevail is the status before the 3^rd Applicant entered the suit premises. I therefore find no merit in the Applicant’s application which is hereby dismissed with costs to the Respondent. 

It is so ordered.

Dated, Signed and Delivered at Nairobi on this 6^th of May 2021.

E.O. OBAGA

JUDGE

In the Virtual presence of:-

Mr Onindo for Appellants

M/s Kipkosgei for Mr Kiarie for Respondent

Court Assistant: John

E. O.OBAGA

JUDGE