Ndichu (As administrator of the Estate of Peninah Wambui Kinuthia) & another v Kibutha & 4 others (Civil Appeal (Application) E683 of 2021)  KECA 1399 (KLR) (16 December 2022) (Ruling)
Neutral citation:  KECA 1399 (KLR)
Republic of Kenya
Civil Appeal (Application) E683 of 2021
HA Omondi, DK Musinga & PM Gachoka, JJA
December 16, 2022
Stephen Kinuthia Ndichu (As administrator of the Estate of Peninah Wambui Kinuthia)
Pauline Wangui Kariuki
Jane Njeri Kibutha
Gladys Njambi Kabi
Elizabeth Thaba Karura
Agnes Wairimu Karanja
Rebecca Wanjiru Karura
1.Before us is a notice of motion expressed to be brought under sections 3A and 3B of the Appellate Jurisdiction Act, Rules 1(2), 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules. The application seeks the following orders:
2.By way of background, the late Elizabeth Thara Karanja had two daughters namely, Hannah Karura Kimunya (also deceased) and Peninah Wambui Kinuthia. The deceased, Elizabeth Thara Karanja owned a parcel of land No. Githunguri/Kimathi/588 which she subdivided into two parcels, No. Githunguri/Kimathi/965 and Githunguri/Kimathi 966. She transferred land parcel No. Githunguri/Kimathi 966 to Hannah Karura Kimunya and parcel of land No. Githunguri/Kimathi/965 to Peninah Wambui Kinuthia.
3.From the record, the relationship between the two sisters, Hannah Karura Kimunya and Peninah Wambui Kinuthia was not cordial, but that is not relevant for the purposes of this application. The fact that is relevant, is that Hannah Karura Kimunya had no children of her own. She adopted the 1st,3rd and 5th respondents, who were children of her cousin by the name Elizabeth Wambui Kabue. The deceased, Hannah Karura Kimunya, also invited the 2nd respondent to stay with her to assist in daily chores and farming activities. The 4th respondent is also a relative of the deceased. In her lifetime, the deceased Hannah Karura Kimunya transferred her land parcel No. Githunguri/Kimathi 966 to all the respondents and that transfer was the bone of contention in the trial court and in this Court.
4.On 3rd December 2010, the respondents sued the applicants in ELC Case No. 594 of 2010 (Nairobi), seeking a permanent injunction to restrain them from interfering with their parcel of land, Githunguri/Kimathi 966. The main claim against the applicants in the trial court was that, they were trespassing on the respondents’ land by pruning coffee and planting trees. Upon hearing the suit, L. Komingoi, J. held as follows:
5.Aggrieved by the judgment of the learned Judge, the applicants filed an appeal and the instant application. The applicants have filed written submissions dated 28th March 2022 reiterating the averments in the supporting affidavit of Stephen Kinuthia Ndichu and the points of law on the applicable principles, in an application under Rule 5 (2) (b) of the Court of Appeal Rules. On their part, the respondents, though duly served, did not file any submissions.
6.When the application was called out for hearing, the applicant’s advocate, Mr. Mwangi, highlighted his written submissions. The respondent’s advocate, Mr. K. Njoroge, though duly served, did not attend.
7.To succeed in an application made under Rule 5 (2) (b), an applicant must satisfy the twin principles that are enumerated in many decisions of this Court, namely:
8.On the first limb of the twin principles, this Court held in David Morton Silversein .vs. Atsango Chesoni  eKLR that for an order of stay to issue, the applicant must first demonstrate that the appeal or intended appeal is arguable, that is, it is not frivolous, and that the appeal or intended appeal, if successful, would in the absence of stay be rendered nugatory. [See also Reliable Bank Ltd. (in liquidation) vs. Norlake Investments  1 EA 227, Nation Newspapers Limited vs. Peter Baraza Rabando, CA No.1  eKLR and Republic vs. Kenya Anti-Corruption Commission & 2 others  eKLR 31.
9.On sufficiency of the grounds to warrant a grant of the stay of the orders sought, this Court in Transouth Conveyors Limited vs. Kenya Revenue Authority & Another  eKLR, observed that a single issue will suffice and an applicant need not establish a multiplicity of arguable issues. Neither is the applicant required to show that the ground would succeed. It only needs to be an issue that raises a serious question of law worthy of consideration of the Court, or one in respect of which a reasonable argument can be put forward in support (see Retreat Villas Limited vs. Equatorial Commercial Bank Limited & 2 Others CA No. 40 of 2006).
10.On the first principle, as to whether or not the appeal is arguable, the applicants have annexed a memorandum of appeal raising a number of grounds, which we need not recite but which can be summarized as follows: that the learned judge erred in holding that L. R. Githunguri/Kimathi 966 was not transferred to the respondents fraudulently; that the judge erred by holding that the deceased Hannah Karura Kimunya was of sound mind when she transferred the property to the respondents; failing to properly evaluate the evidence; and shifting the burden of proof to the applicants.
11.It is now a well-settled principle of law, that an “arguable” appeal is not one that must necessarily succeed but one which ought to be argued fully before the Court. (See Kenya Commercial Bank limited vs. Nicholas Ombija  eKLR. However, in instances where the grounds are on the face frivolous, the Court will not hesitate to express its doubts on the arguability of the grounds.
12.In the instant application, it is not in doubt that the respondents are the registered owners of land parcel No. Githunguri/Kimathi 966, which was transferred to them by the late Hannah Karura Kimunya in her lifetime, and that was the basis for granting an injunction against the applicants. The only claim by the applicants, is that the late Hannah Karura Kimunya, who was their aunt held the land in trust for them as she had no children. Allegations of fraud were dismissed by the High Court. Noting that the land was transferred to the respondents by Hannah Karura Kimunya in her lifetime, we are doubtful of the arguability of the intended appeal.
13.Even if we were to consider the second principle of whether the appeal will be rendered nugatory, we note that the land in dispute L. R. Githunguri/Kimathi 966 was transferred and registered in the names of the respondents on 29th December 2009 by the late Hannah Karura Kimunya, who later died on 6th January 2010. The only issue raised by the applicants in their submissions is that the suit property may be sold, transferred, or dealt with in a manner aimed at defeating the appeal. We also note that in the supporting affidavit of Stephen Kinuthia Ndichu, (the 1st applicant) sworn on 22nd March 2022, there is no averment that the land is being sold or alienated.
14.It is instructive that the judgment was in the nature of an injunction restraining the applicants from trespassing, wasting, damaging, selling or in any way interfering with the respondents’ quiet possession of the land. At this stage, the applicants have not demonstrated how the appeal will be rendered nugatory if the order for injunction that was issued against them by the trial court is not stayed. Indeed, we note that the granting of an order for stay or injunction as prayed by the applicants would amount to allowing the applicants to do the things that they were injuncted from doing by the trial court.
15.It is therefore clear that this application fails to meet the twin principles for the grant of the prayers that are sought under Rule 5(2)(b) of the Rules of this Court.
16.Accordingly, we dismiss the application with no orders as to costs as the respondents did not file any response to the application.
DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF DECEMBER, 2022.D. K. MUSINGA, (P).JUDGE OF APPEALH. A. OMONDIJUDGE OF APPEALM. GACHOKA, CIArb, FCIArbJUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR