1.This ruling is on the notice of motion dated 17/12/2021. The said motion is brought under Order 42 Rules 6(1) and (2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act as well as other enabling provisions of law.The motion has two main prayers remaining namely.i.A stay of execution of orders issued on 3rd December 2020, by Honorable B. Cheloti (SRM) pending the hearing and determination of the intended appeal.ii.A stay of execution of the ruling delivered on 7th December, 2021 by Hon. B. Cheloti pending the hearing and determination of the intended appeal.
2.The grounds for seeking the above orders are as follows;a.That substantial irreparable loss will result to the Appellants unless the orders sought are granted.b.That there has been no unnecessary delay in bringing this application.c.That the Appellants have an arguable appeal with a high probability of success and if the instant application is not allowed, the appeal will be rendered nugatory.d.That the Appellants are willing to provide security as the court orders for the performance of such decree which may issue.e.That no prejudice will be suffered by the Respondents if the application is allowed.
3.In further support of the application, Peter Gituro Githinji has sworn a supporting affidavit with three annexures which include the order dated 3/12/2020, an application dated 15/10/2021 seeking to have Appellants join the suit in the Lower Court, namely ELC Miscellaneous Cause No. E017/2020 at the Chief Magistrates Court, Kajiado and a copy of the ruling dated 7th December, 2021.
4.The application is opposed by the Respondents and one Wilson Ngotho has sworn a replying affidavit filed in court on 17/2/2022 whose gist is that the Applicants have not proved that the intended exercise of boundary demarcation will occasion them any prejudice.It also deposed that the application is a delaying tactic aimed at continued trespass on the Respondents land number KJD/LOODARIAK/20.
5.Counsel for the parties filed written submissions on 6th and 7th October, 2022 respectively.
6.I have carefully considered the application in its entirety including the grounds, the affidavits, the annexures and the submissions.I find that the application dated 17/12/2021 has no merit for the following reasons.Firstly, the dispute between the parties herein concerns boundaries between parcels numbers KJD/Loodariak/20, 1594, 1810 and 1811.Section 18 (2) of the Land Registration Act provides as follows.Secondly, I do not see the prejudice the Applicant will suffer if the boundaries are determined by the registrar as intended.I suppose that they too will be in attendance during the exercise and they will be heard. It is only after the boundaries have been fixed by the Land Registrar that the Applicants may file a suit.For the above stated reasons, I dismiss the application dated 17/12/2021 with costs to the Respondents.