1.The applicant was aggrieved by the judgement of the ELC Court (Gaceru, J.) in Thika, ELC Appeal 41 of 2018 and having lodged an appeal, moved this Court under section 3A and 3B of the Appellate Jurisdiction Act, and rules 5(2) (b) and 47(1) & (2) of the Court of Appeal Rules, seeking orders of stay of the trial court’s judgement and decree pending hearing and determination of the appeal.
2.The application is predicated on the grounds on the face of the application and the undated supporting affidavit of the applicant, where he deposed that the suit property is family land where their parents are buried; that he has a permanent home therein; and if the stay is not granted his home may be demolished; which will cause his family irreparable loss; yet the respondent will not suffer any prejudice as he has never occupied the property.
3.In his submissions counsel for the applicant urged that he has an arguable appeal, and if stay is not granted the appeal will be rendered nugatory.
4.The application was opposed by the respondent through his undated replying affidavit, wherein he stated that he is the proprietor of the land, Escarpment Kinari Block 1/1920, which he purchased in 1992 from one Mwaura Hindu, and relocated his father who was homeless; that the property was never family land; further, the applicant does not reside on the land as alleged; and has been violent to the respondent whenever the respondent attempted to visit the property.
5.Counsel for the respondent, further submitted that the appeal is out of time; the respondent was not served with the letter bespeaking the proceedings; which means the notice of appeal stands withdrawn. Further, the applicant has not met the necessary threshold for issuance of an order under rule 5(2) (b) of the rules, in that the property belongs to the respondent and he is the one who stands to suffer loss.
6.The brief background of the case is that the applicant and the respondent are siblings. Their late father was buried on the land, which the applicant claims to have inherited, whereas the respondent claims that he bought the same and settled his parents on it. The trial court found in favour of the respondent and ordered the applicant to vacate.
7.The respondent submitted that the applicant did not serve him with the letter bespeaking the proceedings. The applicant may not have filed an appeal within 60 days, however that issue is not before us. Secondly, rule 86 of this Court’s Rules is clear on what a party affected by an appeal may do, when necessary steps are not taken. It provides:
8.The application before us is based on rule 5 (2) (b) of this Court’s Rules which provide that;
9.In an application such as the one before us, the applicant is required to satisfy the Court that he has an arguable appeal, one which is not frivolous, but not necessarily that the appeal will succeed. Further, the applicant has to demonstrate that in the event stay is not granted the appeal will be rendered nugatory.
11.Having considered the matter, we are satisfied that the applicant has an arguable appeal. On the nugatory aspect, we are of the view that the circumstances of the case militate towards preserving the substratum of the appeal, as the consequential effect, if the stay is not granted may be irreversible and prejudicial to the applicant, in the event of a successful appeal. Consequently, we hereby grant the orders as sought.
12.The costs of the application will abide the outcome of the appeal.