1.By the Notice of Motion dated 27th October, 2021 as filed herein on 4th November 2021, the five (5) Appellants herein pray for an order of stay of execution of the Judgment and decree of the Karatina Principal Magistrate’s Court ELC Case No. 10 of 2018 dated 14th October, 2021 pending the hearing and determination of the Appeal.
2.The application is supported by an Affidavit sworn by the 1st Appellant – Esther Muthoni Gakuru and is premised on the grounds:(a)That the Appellants have a very good appeal with very high chances of success;(b)That the Appellants are likely to suffer irreparable loss which cannot be compensated by damages;(c)That the Appellants are likely to be declared destitute/vagabond should execution proceed;(d)That the Court has ordered that the Appellants vacate within 90 days of the Judgment;(e)That the 1st Appellant’s husband who is also the father of the 2nd to 5th Appellants is buried in one of the suit properties;(f)That the 5th Appellant’s husband is buried in one of the suit properties; and(g)That it is in the interest of justice that the application be allowed as the Respondent will suffer no prejudice.
3.The application is opposed. In her Replying Affidavit sworn on 19th November, 2021 as filed herein on 23rd November 2021, Mary Wanjiku Muhindi (the Respondent) avers that the application has not met the threshold for the grant of the orders of stay of execution. The Respondent avers that the 1st Appellant illegally buried her husband on land parcel No. Magutu/Gatei/1587 on 22nd April, 2016 when the matter was pending hearing and determination of the ownership of the land.
4.The Respondent asserts that she will be greatly prejudiced as she has been unable to utilize her parcels of land since 2015 as the Appellants took illegal possession thereof after the death of the 1st Defendant.
5.The Respondent further avers that the Appeal has no chances of success as the same is based on facts that were well canvassed and considered in the Judgment of the Lower Court. It is further her case that this is an old matter and that she should be allowed to enjoy the fruits of her Judgment.
6.I have perused and considered the Appellants’ application as well as the response thereto by the sole Respondent. I have similarly perused and considered the rival submissions placed before me by the Learned Advocates acting for the Parties.
7.The Appellants herein crave a stay of execution of the orders issued on 14th October, 2021 by the Honourable A. Mwangi, P.M. in Karatina PM ELC Case No. 10 of 2018. By the Judgment delivered on the said date the Learned Magistrate did dismiss the Appellants case against the Respondent and ordered them to vacate the suit property. Aggrieved by the said orders, the Appellants lodged a Memorandum of Appeal and instituted the application for stay of execution presently before me.
8.In respect of an order for stay of execution, Order 42 Rule 6(2) of the Civil Procedure Rules provides thus:
9.As was stated in RWW -vs- EKW (2019) eKLR:
10.Considering a similar situation in Samvir Trustee Limited -vs- Guardian Bank Limited (2007) eKLR, Warsame J. (as he then was) expressed himself as hereunder:
11.In the matter before me, the 1st Appellant is the mother of the 2nd to the 5th Appellants. Together they had by a Plaint lodged herein sued one Patrick Gakuru Kinyua together with the present sole Respondent seeking for an order that the Registrar of Titles Nyeri do cancel title deeds for Magutu/Gatei/1587 and Magutu/Gatei/1588 and that subsequently the same be partitioned into six equal portions for the family of the said Patrick Gakuru Kinyua who was sued as the 1st Defendant. The Plaintiffs also sought an order that the registration of the said 1st Defendant as the owner of the two parcels of land was subject to an overriding interest of customary trust and that the Plaintiffs had beneficial interest on the land.
12.The said 1st Defendant Patrick Gakuru Kinyua was the husband to the 1st Appellant herein and the father to the 2nd to 4th Appellants. The 5th Appellant was his daughter-in-law. The Appellants had accused the 1st Defendant of fraudulently selling the suit properties which were registered in his name to the 2nd Defendant (the sole Respondent herein) without their knowledge and or consent.
13.The Respondent denied the allegations of fraud and asserted that she was an innocent purchaser for value and that she had followed due process in acquiring the suit properties from the registered owner. She accused the Appellants of recently invading the land, taking over the same forcefully and proceeding to bury the 1st Defendant who had since passed away on the suit properties. By way of counter-claim, the Respondent sought the eviction of the Appellants from the suit properties as well as a permanent injunction restraining them from claiming interest in the suit lands.
14.Having heard both sides of the dispute, the Learned Trial Magistrate found no merits in the Appellants claim and gave orders as sought in the Respondent’s Counter-claim. By the present application, the Appellants now contend that they have a very good appeal and that if evicted from the suit properties they stand to suffer irreparable loss as they have buried their husband and father on the land and that they have occupied and lived on the suit properties all their lives.
15.While they do not state when the 1st Appellant’s husband was buried on the suit property, it was clear that the said husband who is also sued as the 1st Defendant herein passed away some 11 days after this suit was filed on 16th April, 2016. It was also clear from the material placed before me that the 1st Defendant was buried on land parcel No. Magutu/Gatei/1587 on 22nd April, 2016 without the Respondent’s knowledge. An application by the Respondent to have the body exhumed was held in abeyance to enable the hearing of the matter to be expedited.
16.Given that the Appellants buried the deceased on the disputed property during the existence of this suit, I am unable to see how they can now turn around and purport that his exhumation following a Judgment of a competent Court to which they had subjected themselves to would lead to irreparable loss on their part.
17.And while the Appellants claim that they have always lived on the suit land ever since they were born, it is clear from the testimony of the 1st Appellant as rendered in the Lower Court that that was not the case. The record captures the 1st Appellant stating in Court on 19th August, 2021 that her husband had purchased land in Laikipia and that they were not staying in the suit lands when the husband passed away in 2016. She also admitted the properties were solely registered in her husband’s name as at the time he sold them to the sole Respondent herein.
18.Arising from the foregoing, I was not persuaded that the Appellants stand to suffer substantial loss unless the orders of stay are granted. As was stated in Machira T/A Machira & Company Advocates -vs- East African Standard (No. 2) of 2002 KLR 63:”To be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principles of the exercise of judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the Court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution pending appeal are handled. In the application of that ordinary principle, the Court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in Courts, which is to do justice in accordance with the law and to prevent abuse of the process of the Court.”
19.In the matter herein it is apparent that the Respondent had bought the suit properties from the registered proprietor in September, 2015. Since then she has been prevented from making use of her investment by the Appellants who claim that they had some beneficial interest in the land. In the circumstances herein it is clear to me that it is the Respondent who has suffered and continues to suffer substantial loss.
20.It follows that I am not persuaded that there is any basis to grant a stay of execution herein. The Motion dated 27th October, 2021 is accordingly dismissed with costs.