1.By the Notice of Motion application dated August 5, 2022, the Appellant/ Applicant has sought for the following orders:
2.This application is supported by the Affidavit of the Appellant who deposed that she is the beneficial owner of all that parcel of land known as Plot No 139 as described in Share Certificate No 756 in Kasarani Re- Settlement Project and situated at Kasarani, having purchased the same from one Hannah Wanjira Karanja.
3.It was deponed by the Appellant that she filed Milimani CMELC No493 of 2021 on December 17, 2021 and sought injunctive orders and that by the ruling dated July 29, 2022, the court dismissed her application.
4.The Appellant opines that the dismissal was wrongful as the court failed to consider the evidence presented in the application; that she is in actual possession of the suit property and that due to the trial court’s ruling, the Respondents have threatened to trespass on the suit property with the intention of constructing thereon and if a stay of execution is not granted, the object of the application and appeal will be rendered nugatory.
5.The 3rd Respondent opposed the application. According to the 3rd Respondent, the impugned order is a negative order incapable of being stayed; that the ruling and order essentially dismissed the application dated December 17, 2021 with costs to the Respondents and that the refusal means that the applicant stays in the situation she was in before coming to court and the issues of substantial loss and/or the appeal being rendered nugatory does not arise.
6.The 3rd Respondent averred that while the application is pursuant to the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010 which provides for stay of execution pending appeal, the Applicant’s Order No 3 is sought under the provisions of Order 40 rule 1,2 & 3 of the Civil Procedure Rules.
7.It was deponed that the application is a clever attempt to have a second bite at the cherry after failing to meet the threshold for grant of injunction; that the Applicant is misrepresenting facts as she continues to be in possession of the suit property and is further wasting away the property by engaging in a construction exercise, thus exposing the Respondents herein to irreparable harm if a decision is rendered in her favour.
8.It was the 3rd Respondent’s averment that the appellant has not met the threshold provided for under Order 42 Rule 6 as she has not proved the substantial loss she might suffer and has not expressed the willingness to furnish such security and that the Appellant has approached this court with unclean hands and is culpable of abuse of legal process and is forum shopping.
9.It was argued that the Applicant has failed to demonstrate and prove to this court that the Respondents have threatened to trespass onto the said parcel; that the Respondents have never threatened to trespass onto the suit land or pursue construction thereon and that the only person posing a risk to the suit property is the Applicant.
10.The 3rd Respondent deponed that the Appeal herein is prima facie frivolous; that the subordinate court considered the arguments together with the evidence before it and that there will be no prejudice suffered if the suit in the subordinate court is allowed to be heard expeditiously to resolve the ownership dispute.
11.The Appellant/Applicant, in a Further Affidavit, averred that the stay of proceedings in the trial court is necessary to avoid parallel decisions based on the same subject matter; that he is not engaged in the construction of the suit property; that the purported photographic evidence by the 3rd Respondent is a fabrication of evidence which cannot be true and lastly, that she has an arguable Appeal as demonstrated by the Memorandum of Appeal filed herein.
12.Counsel for the Appellant submitted that this court has the discretion to grant the orders for temporary injunction pending appeal under Order 42 Rule 6(6) of the Civil Procedure Rules and that the role of this court is not to consider what was decided by the lower court, but whether the Appellant has demonstrated having an arguable appeal.
13.Counsel submitted that the Applicant has demonstrated that she has a good and arguable appeal through her Memorandum of Appeal; that in her Further Affidavit, the Appellant has showed the evidence she relied on in the Lower Court and that the Applicant has shown that to refuse to grant the injunctive orders would render the appeal nugatory as the Respondent has threatened to go back to the suit property and continue the construction.
14.Counsel submitted that by producing the sale agreement and the share certificate, the Appellant had established that she bought the property for value and therefore has a legal or equitable right requiring protection by way of an injunction. On the other hand, it was submitted, the 3rd Respondent claims to have purchased Plot No 316, which is different from the Applicant’s Plot No 139, and that in any case, the 3rd Respondent failed to exhibit a sale agreement.
15.Counsel for the 3rd Respondent submitted that the lower court’s orders were in the nature of a negative order and as such, are incapable of being stayed; that the Applicant is not deserving of the orders of this court because while the application is brought pursuant to Order 42 Rule 6 of the Civil Procedure Rules 2010, the Applicant’s third prayer is an order of injunction to be sought under Order 40 Rule 1, 2 and 3 making the application fatally defective.
16.Counsel submitted that the Applicant is not in any danger of suffering any substantial loss; that the court has to consider the conflicting claims of both parties, with each case being considered on its merits and that the subordinate court applied the law to the facts as espoused in Robert Mugo wa Karanja v Ecobank (Kenya) Limited & another  eKLR.
Analysis and Determination
17.Upon consideration of the application, the pleadings filed and the parties’ submissions, the issues that arise for determination are:
18.A brief background of this matter is that the Appellant/Applicant filed CMELC No 493 of 2021 on December 17, 2021 and simultaneously sought orders of injunction, which the court declined to grant in the impugned ruling of July 29, 2022.
19.The Appellant’ s claim before this court is that the magistrates’ court erred in failing to find that the she had satisfied all conditions for the grant of injunction; that the court failed to assess the possible loss to be suffered by her in failing to grant the orders and that the court failed to appreciate the grounds of the application and her arguments.
20.The jurisdiction of this court to grant a temporary injunction pending hearing and determination of an appeal is grounded under Order 42 Rule 6 (6) of the Civil Procedure Rules. This provision grants the court discretionary powers to grant orders on such terms as it deems fit so long as the procedure for filing an appeal from a subordinate court has been complied with. It provides as follows:
21.Section 16A of the Environment and Land Court Act stipulates that appeals from the subordinate court should be filed within thirty days from the date of the order or decree appealed from.
22.In the instant appeal, the impugned ruling was delivered on July 29, 2022 whilst the Memorandum of Appeal was filed on August 5, 2022 which is within the requisite period. The Appellant has thereby complied with the procedure for instituting an appeal before this court.
25.The principles in Giella v Cassman Brown  EA 358 that must be satisfied for a court to issue injunctive orders are whether an applicant has a prima facie case with a probability of success; whether the applicant might suffer irreparable injury, which would not adequately be compensated by an award of damages and whether the balance of convenience tilts in favour of the applicant.
28.In this case, the Appellant’s case is that the lower court’s dismissal of the application for injunction was wrongful as the court failed to consider the evidence presented in the application; that the Appellant is in actual possession of the suit property and due to the trial court’s ruling, the Respondents have threatened to trespass on the suit property with the intention of constructing on the suit thereon.
29.According to the Appellant, if a stay of execution is not granted, the object of the application and appeal will be rendered nugatory.
30.The object of the appeal is with respect to the refusal of the subordinate court to issue orders of injunction against the Respondents, pending determination of the application.
31.In support of the application, the Appellant has annexed the impugned Ruling, the Memorandum of Appeal, an ownership certificate over the suit property in the Appellant’s name, a sale agreement, the injunction application before the Magistrate’s court, copies of an OB No 28/20/11/2021 and photographs.
32.The Respondents have not denied that the Appellant is in possession of the suit property. In my view, the prevailing status quo by way of an injunction pending the hearing of the Appeal, or the suit in the lower court, whichever comes first should be issued. That way, the danger of the Appellant suffering irreparable injury in the event she is evicted at this stage will be curtailed.
33.The Appellant/Applicant has also sought that this court stays the orders of the subordinate court issued on July 29, 2022 as well as the proceedings in the lower court. This court has the discretionary power to issue orders of stay of proceedings or a stay of execution upon filing of an application such as the one before this court.
34.In the impugned Ruling, the subordinate court considered the Appellant’s prayers for temporary injunction orders. The court found that the Appellant had failed to persuade it that the suit property was in danger of being wasted. The court concluded that the prayer for injunction was unmerited and dismissed the Motion dated 17th December 2021 with costs to the Respondents.
36.The Court similarly relied on the case of Raymond M. Omboga v Austine Pyan Maranga Kisii HCCA No 15 of 2010, where Makhandia, J (as he then was) stated thus:
38.It is evident that the impugned Ruling of the court is a negative order as it did not order the parties to do anything or to refrain from doing anything. As such, the order is incapable of execution and cannot be stayed. Guided by these decisions, this court dismisses the prayer for stay of the impugned orders.
39.In respect to the prayer for stay of proceedings, the court in Kenya Wildlife Service vs James Mutembei  eKLR quoting Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, held as follows:
40.Ringera J (as he then was) In Re Global Tours & Travel Ltd HCWC No43 of 2000 Ringera, J opined that in an application for stay of proceedings, the sole question is whether it is in the interests of justice to order a stay of proceedings and the terms upon which such stay should be granted.
41.This court has already made a finding that the prevailing status quo be maintained pending the hearing of the appeal or the suit in the lower court. The Appellant has neither argued nor shown that she stands to suffer substantial loss by the continued proceedings in the lower court. That being so, it is in the interest of justice that CMELC No 493 of 2021 be heard and determined swiftly on its merits.
42.Accordingly, the court partially allows the application dated August 5, 2022 as follows:a.The prevailing status quo to be maintained pending the hearing and determination of the appeal, or the suit in the lower court, meaning that:i.The Appellant will remain in possession of the suit property.ii.There shall be no further constructions or development on the disputed parcel.iii.There shall be no charging or transferring of the suit property.