Case ID:167497

Phares Ndungú Chege & another v Linnet Wairimu Mukuha & 2 others [2020] eKLR

Case Metadata

Case Number:

Civil Application 80 of 2020

Parties:

Phares Ndungú Chege & Gursharn Singh v Linnet Wairimu Mukuha, Grace Wambui Mukuha & Lucy Wanjiru Nyaga ( Suing as the administrator of the Estate of Joseph Nyaga Wambiti

Date Delivered:

04 Dec 2020

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Jamila Mohammed, Sankale ole Kantai, Fatuma sichale

Citation:

Phares Ndungú Chege & another v Linnet Wairimu Mukuha & 2 others [2020] eKLR

Case History:

(A Notice of Motion Application for an injunction pending the Hearing and determination of an intended Appeal from the Ruling of the Environment and Land Court of Kenya at Nakuru (Ohungo, J) dated 5th March, 2020, in ELC Case NO. 551 of 2016)

Court Division:

Civil

County:

Nairobi

History Docket No:

ELC Case NO. 551 of 2016)

History Judges:

Dalmas Omondi Ohungo

History County:

Nakuru

Case Outcome:

Application disallowed

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: SICHALE, J. MOHAMMED & KANTAI, JJ.A]

CIVIL APPLICATION NO. 80 OF 2020

BETWEE

N

PHARES NDUNGÚ CHEGE............................................................1

ST

APPLICANT

GURSHARN SINGH.........................................................................2

ND

APPLICANT

AND

LINNET WAIRIMU MUKUHA.....................................................1

ST

RESPONDENT

GRACE WAMBUI MUKUHA.......................................................2

ND

RESPONDENT

LUCY WANJIRU NYAGA (Suing as the administrator of the

estate of JOSEPH NYAGA WAMBITI..........................................3

RD

RESPONDENT

(A Notice of Motion Application for an injunction pending the Hearing and determination of an intended Appeal from the Ruling of the Environment and Land Court of Kenya at Nakuru (Ohungo, J) dated 5

th

March, 2020,

in

ELC Case NO. 551 of 2016)

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

RULING OF SICHALE, J.A

1.

UPON

perusing the Notice of Motion dated

16

th

March, 2020

by the applicants, said to be brought under

Rules 5, 41 and 47 of

this Court’s Rules

wherein the applicants

Pharis Chege

and

Gursharn Singh

seek,

inter alia,

the following orders:

“

1. THAT this Application be certified urgent and be heard ex parte in the first instance in accordance with Rule 47 of the Court of Appeal Rules, 2020.

2. THAT pending the hearing and determination of this application interpartes, this Honourable Court be pleased to issue an injunction restraining the Respondents herein either by themselves, their agents, Auctioneers, Bailiffs, servants, workers and/or any other person or firms deriving title from them or any of them from dispossessing or evicting the Applicant and/or any member of his family from the parcel of land known as NAIVASHA MUNICIPALITY BLOCK 6/117 situate in Naivasha within Nakuru County, levying Distress, attaching or seizing any property therein belonging to the Applicant or in any other way interfering with the Applicant’s or his family’s quiet and peaceful occupation, use and possession of any of the premises currently standing on NAIVASHA MUNICIPALITY BLOCK 6/117 or any part thereof.

3. THAT pending the hearing and determination of the intended Appeal, this Honourable Court be pleased to grant an Injunction in terms of prayer No. 1 above

4. THAT the costs of this Application be provided for” ;

and

2.

UPON

perusing the affidavit of

Pharis Ndungú Chege,

the 1

st

applicant herein sworn on the

16

th

day of March, 2020

where he has deposed that he is the sole registered owner of all that parcel of land known as

NAIVASHA

MUNICIPALITY BLOCK 6/117 (the suit premises)

since the year 2015; that he and his family are in occupation of the suit premises; that the issue of ownership of the suit premises is pending before the E&LC Nakuru and therefore the respondents have no right to demand rent from him and or threaten to commence the process of levying distress against him; that he sought injunctive orders against distress over the suit property and his application was dismissed with costs in a ruling delivered on

5

th

March,

2020

by

Ohungo, J.

and that he and his family are likely to suffer irreparable loss as the respondents are likely to evict them by way of levying distress in the event that the orders sought are not granted; and

3.

UPON

perusing a replying affidavit sworn on

14

th

July, 2020

by

Grace Wamboi Mukuha

, the 2

nd

respondent sworn on her behalf and on behalf of the 1

st

respondent and the 3

rd

respondent wherein, it is contended that the applicant through one,

Julia Wangari

occupied part of the suit premises as a tenant paying rent of Kshs. 25,000.00 per month in the year 2014; that a certificate of lease dated

24

th

August, 2015

was fraudulently obtained by the applicant; and

4.

HAVING

considered the principles that guide this Court in determination of

Rule 5(2)(b) applications

as enunciated in

Stanley Kang’ethe Kinyanjui

vs. Tony Keter & 5 Others [2013] eKLR;

and

5.

NOTING

that the applicants have not demonstrated that they have an arguable appeal which may be rendered nugatory, absent stay, given that the applicants’ entry onto the suit premises was on a tenancy arrangement and that they have hitherto been paying rent in respect of the suit premises; and

6.

GIVEN

that no prejudice will be occasioned to the applicants absent stay, we make the following orders:

(i) That the Notice of Motion dated

16

th

March, 2020

is disallowed.

(ii) The respondents shall have the costs of this application.

Dated and Delivered at Nairobi this 4

th

Day of December, 2020.

F. SICHALE

……………….……………….

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR

RULING OF J. MOHAMMED, JA

I have had the benefit of reading the ruling of the

Hon. Lady Justice F.

Sichale, J.A

.in draft. I entirely concur with her findings and I have nothing useful to add. As the

Hon. Mr. Justice Kantai, J.A

. agrees, the final orders of the Court shall be as proposed by the

Hon. Lady Justice Sichale, J.A.

Dated and delivered at Nairobi this 4

th

day of December, 2020.

J. MOHAMMED

………………………..………

JUDGE OF APPEAL.

RULING OF KANTAI, JA

We are asked in the Motion brought under

rule 5

of the

Rules of this

Court

amongst other provisions of law that pending the hearing and determination of the application we be pleased to grant an injunction restraining the respondents from disposing or evicting the applicant or members of the applicant’s family from the parcel of land known as

Naivasha

Municipality Block 6/117, Nakuru County

, levying distress, attaching or seizing any property belonging to the applicant or in any way interfering with the applicant’s quiet and peaceful occupation, use and possession of the said land. We are also asked to order an injunction pending hearing and determination of an intended appeal.

It is stated in grounds in support of the Motion and in a supporting affidavit of the applicant

Pharis Chege

that the proposed appeal is arguable and has merit; that if we don’t stop the distress and eviction of the applicant as ordered by the Environment and Land Court at Nakuru it would cause substantial loss to the applicant and his family. It is also stated that the applicant is the sole registered owner of the said parcel of land since the year 2015; that the respondents’ own an adjacent property; that the respondents’ had filed a suit against the applicant; that a surveyor had been appointed by the parties and, upon a visit to the lands found that the respondents’ had encroached into the applicants land to the extent of 0.11372 hectares; that a proclamation had been made over the applicant’s property; that a suit at the ELC at Nakuru is pending hearing; that by a ruling of

Ohungo, J.

made on 5th March, 2020 the applicants application was dismissed and that status quo should be maintained pending appeal.

Grace Wambui Mukuha

, the 2nd respondent, in a replying affidavit it is deposed that the applicant was/is a monthly rent paying tenant of the respondents since 2014; that the Certificate of Lease in the name of the applicant was obtained fraudulently; that the applicant’s agent had in 2017 confirmed that there was a tenancy agreement by the applicant with the respondents; that the respondents had applied for distress of rent at the Rent Restriction Tribunal which ordered the applicant to pay rent; an application for stay of execution at the High Court was dismissed; that the applicant had not paid rent or arrears; that the applicant had then filed a suit at the subordinate court asking for similar orders which was dismissed and, finally, that the applicant is a man who comes to court with unclean hands, who has filed multiplicity of suits but had not paid rent arrears Kshs.1,050,000.

I have considered the application and the rival positions taken by the parties.

In the ruling of Ohungo, J. delivered on 5th March, 2020 the learned Judge did not find any specific threat facing the applicant as no particular date of proclamation or distress had been given by the applicant. The Judge found that the applicant had not established a

prima facie

case to the standard set in the case of

Giella v Cassman Brown & Company Limited [1973] EA 358

. The Judge also reviewed the various matters that the applicant had filed in various courts and found in the event that the applicant was not entitled to an equitable remedy.

The principles that apply in applications of this nature are well known and were summarized in the case of

Stanley Kangethe Kinyanjui v Tony Ketter &

Others [2013] eKLR.

For an applicant to succeed in such an application he must, firstly, demonstrate that he has an arguable appeal which is the same as saying that the appeal, or intended appeal, is not frivolous. The applicant must, in addition, show that the appeal would be rendered nugatory absent stay.

The record shows that the applicant has filed a multiplicity of suits and applications which he has lost. It has been found that he is a tenant who should pay rent but he has not paid the rent or arrears. I cannot, in the premises, see an arguable point in the intended appeal. Being of that view I need not consider the second limb of the principles in an application of this nature.

As proposed by Sichale, JA whose draft ruling I have had the benefit of perusing, the Motion fails and is dismissed with costs to the respondents.

Dated and delivered at Nairobi this 4

th

day of December, 2020.

S. ole KANTAI

……………….………….

JUDGE OF APPEAL