Case ID:165437

Ben Nyakundi v Rajab Ahmend Karume & 3 others [2020] eKLR

Case Metadata

Case Number:

Civil Application 136 of 2019

Parties:

Ben Nyakundi v Rajab Ahmend Karume, Chief Land Registrar, Attorney General & Insurance Training and Education Trust

Date Delivered:

23 Oct 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Martha Karambu Koome, Sankale ole Kantai, Fatuma sichale

Citation:

Ben Nyakundi v Rajab Ahmend Karume & 3 others [2020] eKLR

Case History:

(Being an application for stay of the proceedings and execution pending appeal against the ruling of the ELC (E. Obaga, J) dated 10th April, 2019

IN NAIROBI ELC No. 816 of 2012)

Court Division:

Civil

County:

Nairobi

History Docket No:

NAIROBI ELC No. 816 of 2012

History Judges:

Elija Ogoti Obaga

Case Outcome:

Motion dismissed

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: KOOME, SICHALE & KANTAI, JJ.A]

CIVIL APPLICATION NO. 136 OF 2019

BETWEEN

BEN NYAKUNDI............................................................................................APPLICANT

AND

RAJAB AHMEND KARUME............................................................1

ST

RESPONDENT

THE CHIEF LAND REGISTRAR..................................................2ND RESPONDENT

THE ATTORNEY GENERAL..........................................................3

RD

RESPONDENT

THE INSURANCE TRAINING AND EDUCATION TRUST.......4

TH

RESPONDENT

(Being an application for stay of the proceedings and execution pending appeal against

the ruling of the ELC (E. Obaga, J) dated 10th April, 2019

IN

NAIROBI ELC No. 816 of 2012)

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

RULING OF THE COURT

The applicant,

Ben Nyakundi

filed an application dated

28th September,

2018

in which he sought to be enjoined as an interested party in

ELC Case No.

816 of 2012, (consolidated with ELC Case No. 47 of 2010).

The application was

dismissed on

10

th

April, 2019

by

Obaga, J.

It is this dismissal that has precipitated

the amended Notice of Motion before us dated

11th July, 2019

. The substantive

prayers sought in the motion are:

“

1.…

2. THAT this Honourable Court/Bench be pleased to grant and /or issue an order for stay of proceedings at the superior court in connection with ELC CASE NO. 816 OF 2012 as consolidated with ELC No. 47 of 2010 pending the hearing and determination of (a) this Application and (b) the intended appeal.

3. THAT this Honourable Court/bench be pleased to grant and /or issue

an order for stay of execution of the ruling delivered on 10

th

April, 2019 and the consequent Order dated 25

th

April, 2019 pending the hearing and determination of (a) this Application and (b) the intended appeal.

4. THAT the costs of this application be provided for”.

The application was supported by the affidavit of

Ben Nyakundi

sworn on

8

th

July, 2019.

In paragraph 8 thereof, he decried the fact that the Judge had

dismissed his application to be enjoined in

ELC Case No. 816 of 2012

consolidated

with

ELC No. 47 of 2010

as an interested party.

The motion was opposed by all the respondents. The 1

st

respondent,

Rajab

Ahmed Karume

filed a replying affidavit sworn on

9

th

July, 2019

. He deponed that

ELC No. 816 of 2012

and

ELC No. 47 of 2010

were at the tail end of the hearings

in the ELC. The affidavit in response to the motion on behalf of the 4

th

respondent,

Insurance Training and Education Trust was sworn by

Dr. Ben Kajwang

, it’s

Director, on

3

rd

July, 2019

. In paragraph 9 thereof he deponed that there was no

positive order capable of being executed arising from the ruling of

10

th

April, 2019

.

Then there is an affidavit dated

10

th

September, 2019

sworn by

Joseph Ndungu

Gathondi

(the 7

th

respondent) on his behalf and for the 6

th

respondent,

Jane

Wanjiru Ndumia

. There is also a supplementary affidavit by

Bochere Omariba

Advocate from the firm of

Ogeto, Otachi & Company advocates

explaining their

predicament in obtaining proceedings that were not available in time in order for

them to prefer an appeal on behalf of the applicant.

The 1

st

respondent filed undated submissions contending that the applicant

does not have an arguable appeal as his claim to title over the suit property is

anchored on “

…

an unsigned and unregistered title that appears to have been

downloaded from google …

” On the nugatory aspect, the 1

st

respondent submitted

that there was nothing to stay, as the order sought to be challenged is a negative

order. In the 2nd & 3

rd

respondents’ submissions dated

4

th

May, 2020

, it was

submitted that the proceedings in the ELC had been closed and were then at the

submissions stage. The 2

nd

and 3

rd

respondents further submitted that the title

allegedly acquired by the applicant had not been signed and executed so as to pass

the legal test of being “

registered”

.

In the 4

th

respondent’s submissions, it was contended that the process of

allocation (if any) of the suit property was irregular/illegal. Further, that the

hearings in the ELC had already been concluded.

The twin principles to be satisfied before a grant of stay of execution

pending appeal is issued were summarized in this Court’s decision of

Stanley

Kang’ethe Kinyanjui vs. Tony Keter & 5 Others [2013] eKLR.

Firstly, an applicant

has to demonstrate that he/she has an arguable appeal and secondly that the

appeal will be rendered nugatory absent stay. The two limbs must both be

satisfied.

Having considered the application, the grounds in support thereof, the

affidavits filed in reply by some of the respondents, the 1

st

, 2

nd

and 3rd

respondents’ as well as the 4

th

respondent’s written submissions, it is not disputed

that in the applicant’s notice of motion dated

28th September, 2018

, the applicant

sought to be enjoined in the

ELC case No. 816 of 2012 (consolidated with ELC No.

47 of 2010).

This application was dismissed on

10

th

April, 2019.

The dismissal

being a negative order, in our view, there is nothing to stay as this was not a

positive order capable of being executed. (See

Kenya Commercial Bank Limited

vs. Tamarind Meadows Limited & 7 others [2016] eKLR.

It is also doubtful whether the applicant has an arguable appeal given the

fact that he placed reliance on ownership of the suit property on a title that is yet

to be registered. In view of the above, we find that the applicant has failed to

demonstrate that he has an arguable appeal that will be rendered nugatory, absent

stay.

The upshot of the above is that we find no merit in the motion. It is hereby

dismissed with costs to the respondents.

It is so ordered.

Dated and Delivered in Nairobi this 23

rd

Day of October, 2020.

M. K. KOOME

...................................

JUDGE OF APPEAL

F. SICHALE

...................................

JUDGE OF APPEAL

S. ole KANTAI

...................................

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR