Case ID:165383

Ruth Wanjiru Mukunga v Florence Wairimu Nduru & 2 others [2020] eKLR

Case Metadata

Case Number:

Civil Application E 211 of 2020

Parties:

Ruth Wanjiru Mukunga v Florence Wairimu Nduru, Stephen Gakure Kimaiti & Isaac Mutuku Gachogu

Date Delivered:

23 Oct 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Milton Stephen Asike-Makhandia, William Ouko, Fatuma sichale

Citation:

Ruth Wanjiru Mukunga v Florence Wairimu Nduru & 2 others [2020] eKLR

Case History:

An application for Stay of Execution of the judgment of the Environment and Land Court of Kenya at Thika (L. Gacheru, J) dated 16th July, 2020 in Thika E&LC NO. 406 of 2017

Court Division:

Civil

History Docket No:

E&LC 406 of 2017

History Judges:

Lucy Nyambura Gacheru

History County:

Kiambu

Case Outcome:

Motion dismissed with costs to the respondents

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

[CORAM: OUKO, ASIKE-MAKHANDIA & SICHALE, JJ.A]

CIVIL APPLICATION NO. E. 211 OF 2020

BETWEE

N

RUTH WANJIRU MUKUNGA..................

APPLICANT

AND

FLORENCE WAIRIMU NDURU....1

ST

RESPONDENT

STEPHEN GAKURE KIMAITI .....2

ND

RESPONDENT

ISAAC MUTUKU GACHOGU.......

3

RD

RESPONDENT

(An application for Stay of Execution of the judgment of the Environment and Land Court of Kenya at Thika (L. Gacheru, J) dated 16th July, 2020

in Thika E&LC NO. 406 of 2017)

***************************

RULING OF THE COURT

The applicant,

Ruth Wanjiru Mukunga

filed a Notice of Motion dated

30

th

July, 2020,

said to be brought under

Rules 5(2)(b), 20(b), 41, 42

and

47 (1),(2),(3) and (4) of the Court of Appeal Rules and all other enabling provisions of the

law.

She sought

inter alia

, the following orders:

“1. … (spent)

2. That this Honourable Court be pleased to issue orders of stay of execution restraining the 1

st

respondent, her agents, Assignees and or servants from executing the judgment and the decree of the trial Court in ELC No. 406 of 2017 (Formerly NRB ELC No. 533 of 2012), Judgment of the Honourable Lady Justice L. Gacheru delivered on the 16

th

of July, 2020, until the intended appeal is heard and determined, with the consequence

that the applicant remain in the suit premises herein known as Land Parcel No. Ruiru/Kiu Block 2 /3723, which is subdivided to numbers Ruiru Block 2/10070 -10081 which premises have been the home of the applicant for the last thirteen years, from 2007 todate.

3. That costs of this application be provided for”.

The motion was supported by the applicant’s affidavit sworn on

3

rd

July,

2020

in which she deponed that she is the registered owner of the suit premises which she had owned for the last 13 years (since the year 2007); that she has heavily invested on the suit land; that the 1

st

respondent has never lived on the suit premises; that on

16

th

July, 2020,

the Environment & Land Court (ELC Court) rendered its judgment in favour of the 1

st

respondent; that subsequent to the said judgment, the 1

st

respondent has embarked on acts of selling the suit land as apparently the applicant has encountered many people going to view the land with the intention of buying it; that the 1

st

respondent has erected a bill board on the suit land advertising the suit land for sale inspite of a temporary order of stay of execution issued by the ELC Court, which bill board, the applicant has pulled down. The applicant’s contention is that unless stay of execution is granted, she stands to suffer irreparably if the 1

st

respondent was to execute the said judgment.

The Motion was resisted by the 1

st

respondent,

Florence Wairimu Nduru

, who in a replying affidavit sworn on

17

th

August, 2020

deponed that the documents of title exhibited by the applicant were fraudulently obtained; that the applicant conceded as much on

21

st

July, 2020

; that in the application dated

21

st

July, 2020

before the ELC Court, the applicant had sought to be given 90 days to enable her “

…

remove her various properties and developments in there and

move them to an alternative land

;” that the suit land belongs to her deceased mother and hence she has no capacity to sell it as she is yet to file for a grant of letters of administration of the estate of her late mother.

The principles that guide this Court in the determination of

Rule 5(2) (b)

applications are aptly stated in the decision of

Stanley

Kang’ethe Kinyanjui vs. Tony

Keter & 5 Others [2013] eKLR

. Firstly, the applicant has to demonstrate that he/she has an arguable appeal. Secondly, an applicant has to establish that the appeal will be rendered nugatory, in the absence of a stay order. We have considered the motion, the supporting affidavit, the applicant’s and the 1

st

respondent’s written submissions dated

10

th

August, 2020 and 18

th

August, 2020

respectively, the judgment of the trial court and the law.

Upon applying the said principles to the instant matter, it is doubtful whether the applicant’s title was not fret with illegalities, and hence our doubts as to whether she has an arguable appeal. Secondly, on the nugatory aspect, the 1

st

respondent has deponed that the suit land belonged to her late mother and she is yet to petition for letters of administration. It is therefore not possible for the 1

st

respondent to sell the suit land until the whole process of applying and obtaining a grant of letters of administration is commenced and completed.

In our considered view, the applicant has not established the twin principles of arguability and that the appeal (or the intended appeal) being rendered nugatory, absent stay.

The upshot of the above is that the motion of

30

th

July, 2020

is bereft of merit.

It is hereby dismissed with costs to the respondents.

Dated and Delivered at Nairobi this 23

rd

Day of October, 2020.

W. OUKO (P)

……………………….

JUDGE OF APPEAL

ASIKE-MAKHANDIA

………………………..

JUDGE OF APPEAL

F. SICHALE

……………………….

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR