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Minju v Tagi & 4 others (Environment and Land Appeal E028 of 2022) [2023] KEELC 18268 (KLR) (15 June 2023) (Ruling)
Neutral citation:
[2023] KEELC 18268 (KLR)
Republic of Kenya
Environment and Land Appeal E028 of 2022
LC Komingoi, J
June 15, 2023
Between
Elvis Maina Minju
Appellant
and
Julia Jebet Tagi
1st Respondent
Georffrey Kinyanjui Mungai
2nd Respondent
The Attorney General
3rd Respondent
Land Registrar Kajiado
4th Respondent
Co-Operative Bank Of Kenya Ltd
5th Respondent
Ruling
1.This is the Notice of Motion dated July 4, 2022 brought under;
2.It seek orders;
3.The grounds are on the face of the application and are set out in paragraph a to g.
4.The application is supported by the Affidavit of Elvis Maina Minju, the Appellant herein, sworn on the July 4, 2022.
5.The application is opposed. There is a Replying Affidavit sworn by the 1st Respondent on July 18, 2022. She also filed grounds of opposition dated the same date.
6.The 2nd to 5th Respondents who were duly served did not file any responses.
7.On the October 19, 2022 the court with the consent of the parties directed that the Notice of Motion be canvassed by way of written submissions.
The Appellants’ Submission.
8.They are dated November 25, 2022. Counsel submitted that the Appellant has demonstrated that there is sufficient cause to order a stay of execution as he is the registered owner whose title was the first one in time and the 1st Respondent could not have been a bonafide purchaser for value as the person she bought from was a fraudster who could not pass a valid title.He had put forward the case of Lawrence P. Mukiri Mungai v Attorney General & 4 Others.
9.It is also submitted that the Appellant still holds a valid title deed for the property issued. On November 13, 1991 and if there was an issue on which one prevails it is obvious that this title prevails.Reliance is placed on the case of Christine Kavenge Ndavi vs. Davis George Njoroge Muniu & another [2021]eKLR.
10.It is further submitted that the Appellant is the owner of the Land parcel known as Kajiado/Kitengela/3428 prior to the fraudulent transfer by the 2nd Respondent who subsequently transferred to the 1st Respondent.
11.Counsel further submitted that if the orders sought are not granted the restriction registered against the title will be lifted making it possible for the suit property to be sold and transferred and or charged to third parties. This would render the appeal nugatory should it succeed.
12.It is submitted that it is in the interest of Justice that orders of Stay be granted to preserve the suit property pending hearing and determination of the Appeal.
13.Counsel finally submitted that the application has been made without any delay. He prays that the application be found to be merited and be allowed.
The 1st Respondent’s Submissions.
14.They are dated December 5, 2022. Counsel submitted that the applicant has to set out the full particulars of the kind of loss that may result to him if the stay is not granted as merely stating that he will suffer loss without proving will not suffice.He has put forward the cases of Nicholas Mutuku Mwasuna v Patricia Mueni Kilonzo [2022] eKLR;Machira t/a Machira & Co. Advocates v East African Standard [2002]eKLR;James Wangalwa & Another v Agnes Naliaka Cheseto [2021]eKLR.
15.It is further submitted that the Applicant has to particularize such substantial loss and provides sufficient evidence to support such assertion or contention.
16.That the entries in the green card shows that the 1st Respondent is the registered proprietor of the suit property hence the Appellant is not likely to suffer any loss.
17.It is also submitted that the 1st Respondent has a right to enjoy the fruits of her judgment and that the application ought to be dismissed with costs.
18.I have considered the Notice of Motion and the Affidavit in support. I have also considered the response thereto, the written submissions and the authorities cited. The issues for determination are;
19.The principles guiding the grant of stay of execution pending appeal are well settled.Order 42 rule 6(2) of the Civil Procedure Rules provides that;(2)No order for stay of execution shall be made under subrule (1) unless-
20.It is clear from the above Provisions that for an order of stay of execution to be granted specific conditions must be met by the Applicant.
21.I have considered the Notice of Motion herein and I find that it has been brought without unreasonable delay.
22.It is the Appellant’s/Applicant’s case that if these orders are not granted, the restriction registered against the title will be lifted making it possible for the suit property to be sold and transferred to third parties.
23.It is also his contention that this will render the appeal nugatory.
24.It is his case that his title was the first in time and that the 1st Respondent could not have been a bona fide purchaser for value as the person she bought from was a fraudster.
25.The 1st Respondent on the other hand states that she is the registered owner of the suit property hence the Appellant is unlikely to suffer any loss.
26.The Appellant has maintained that his title was issued on November 13, 1991. He stated that he has never sold the suit property to the 2nd Respondent or anybody else. That to date he still holds a valid title to the suit property.
27.I find that he has demonstrated that he will suffer substantial loss if the restriction is lifted by the 4th Respondent. The suit property is already charged to the 5th Respondent whom may dispose to third parties.In the case of Feissal Amin JanMohammed t/a Dunvia Forwaders v Shami Trading Co. Ltd [2014]eKLR, Kasango J Stated as follows;
28.In the case of Butt v Rent Restriction Tribunal [1982] KLR 447 the Court of Appeal stated thus;The Appellant/Applicant has stated that he is ready to abide by the just terms of stay if given by this Honourable Court.In conclusion, I find merit in this application and I grant the orders sought namely;a.That there be stay of execution of the judgement and decree issued on June 2, 2022 by IM Kahuya Principal Magistrate and all consequential orders pending the hearing and determination of the Appeal on condition that the Appellant does deposit Kshs 300,000/ as security for costs in a joint interest earning account in the name of his counsel and that the Respondent within forty five (45) days from the date of this Ruling. In default, the order of stay of execution shall lapse automatically.b.That costs of this application do abide the outcome of the Appeal.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JUNE, 2023 AT KAJIADO.L. KOMINGOIJUDGE.In the presence of:Mr Gaita for the AppellantMr. Muchai for the 1st Respondent.N/A for the 2nd – 4th Respondents.Mr. Akhulia for the 5th Respondent.Court Assistant – Mutisya.
