Case ID:166560

William Njihia Kimani v Francis Waweru Mbochi [2020] eKLR

Case Metadata

Case Number:

Civil Application 142 of 2018

Parties:

William Njihia Kimani v Francis Waweru Mbochi

Date Delivered:

20 Nov 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Martha Karambu Koome, Wanjiru Karanja, William Ouko

Citation:

William Njihia Kimani v Francis Waweru Mbochi [2020] eKLR

Case History:

Being an application for conservatory orders and an injunction against the Ruling of the High Court of Kenya at Nairobi (H.M. Okwengu, J, - as she then was) dated 23rd November, 2010 in ELC No. 2761 of 1994 Currently:Nyahururu E.L.C. No. 36 of 2018

Court Division:

Civil

County:

Nairobi

History Docket No:

ELC No. 2761 of 1994 E.L.C. No. 36 of 2018

History Judges:

Hannah Magondi Okwengu

History County:

Nairobi

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, (P), KARANJA & KOOME, JJ.A)

NYERI CIVIL APPLICATION NO. 142 OF 2018

BETWEEN

WILLIAM NJIHIA KIMANI...…………………………………..APPLICANT

AND

FRANCIS WAWERU MBOCHI...…………………..………..RESPONDENT

(Being an application for conservatory orders and an injunction against the Ruling of the High Court of Kenya at Nairobi (H.M. Okwengu, J, - as she then was) dated 23

rd

November, 2010 in ELC No. 2761 of 1994

Currently:

Nyahururu E.L.C. No. 36 of 2018)

RULING OF THE COURT

Like is always the norm with land disputes, this dispute has been in court since 1994. The current application was triggered by a decision made on 23

rd

November, 2010 by the High Court in which the respondent’s application seeking cancellation of the title deed issued in favour of the applicant was allowed. The applicant was aggrieved but did not lodge a notice of appeal. By an application dated 11

th

June, 2019, he sought from this Court leave to file the notice of appeal out of time.

Nambuye, JA in chambers, having dismissed the application, the applicant made a reference to a full bench, which also found no merit in the application and likewise rejected it on 7

th

August, 2020.

Even as these were happening, the applicant’s motion dated 14

th

November, 2018 remained alive. In it, he has asked that conservatory orders be issued in respect of certain parcels of land in addition to an order of injunction to restrain the respondent from evicting him from those parcels of land.

Though this history is clear, none of the parties have made reference to it. The respondent’s concern is, however, that the applicant is abusing the court process by making numerous applications over the same matter and cited, among those cases,

Nyahururu ELC No. 36 of 2018,

which is still pending determination of more or less the same matters now being litigated in this motion.

It is also his contention that since no restraining orders were issued restricting him from in any way dealing with the suit property, he has gone ahead and transferred the parcels to third parties on 16

th

October, 2017.

The proper course, after the applicant failed to get the time enlarged, was to withdraw this application. As it is, there is no foundation upon which this application can be anchored without a notice of appeal. See

Safaricom Limited

vs. Ocean View Beach Hotel Limited and 2 others,

Civil Application No. 327 of 2009.

Further, no order of stay can be granted when the substratum sought to be stayed has shifted or dissipated.

In the end, we find no merit in this application, which we accordingly dismiss with costs to the respondent.

Dated and delivered at Nairobi this 20

th

day of November, 2020.

W. OUKO, (P)

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

JUDGE OF APPEAL

W. KARANJA

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

JUDGE OF APPEAL

M.K. KOOME

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

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR