Case ID:169423

Michael Karuku Gatura v Douglas Muindi Kangethe & 3 others [2021] eKLR

Case Metadata

Case Number:

Civil Application E229 of 2020

Parties:

Michael Karuku Gatura v Douglas Muindi Kangethe, James Kamau Kangethe, Hanna Wairigu Gathuri & John Kagai Ngure

Date Delivered:

29 Jan 2021

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Martha Karambu Koome, Roselyn Naliaka Nambuye, William Ouko

Citation:

Michael Karuku Gatura v Douglas Muindi Kangethe & 3 others [2021] eKLR

Case History:

(Being an application for the stay of execution of the Judgment of the Environment and Land Court at Nairobi (Lady Justice J.M. Onyango, J.) delivered on 18th May, 2020

in

ELC Case No. 605 of 2016

Consolidated with

ELC Case No. 758 of 2016)

Court Division:

Civil

County:

Nairobi

History Docket No:

ELC Case No. 605 of 2016 Consolidated with ELC Case No. 758 of 2016)

History Judges:

Jane Muyoti Onyango

History County:

Nairobi

Case Outcome:

Applicant’s 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: OUKO, (P), NAMBUYE & KOOME, JJ.A.)

CIVIL APPLICATION NO. E229 OF 2020

BETWEEN

MICHAEL KARUKU GATURA............................................................

APPLICANT

AND

DOUGLAS MUINDI KANGETHE.................................................

1

ST

RESPONDENT

JAMES KAMAU KANGETHE.......................................................2

ND

RESPONDENT

HANNA WAIRIGU GATHURI........................................................

3

RD

RESPONDENT

JOHN KAGAI NGURE.....................................................................

4

TH

RESPONDENT

(Being an application for the stay of execution of the Judgment of the Environment and Land Court at Nairobi (Lady Justice J.M. Onyango, J.) delivered on 18

th

May, 2020

in

ELC Case No. 605 of 2016

Consolidated with

ELC Case No. 758 of 2016)

**********

RULING OF THE COURT

What the applicant wishes to contest in this Court on appeal is the decision of the Environment and Land Court (M. Onyango,J.) in two consolidated claims, Nairobi ELC Case Number 605 of 2010 and Number 758 of 2016, in which the learned Judge entered judgment in favour of the respondents and declared that they were entitled to Land Parcel

No. Dagoretti/Mutuini/1139

by adverse possession and further that the sub-division of that parcel into 7 parcels by the applicant was null and void. In the end, she ordered the new titles cancelled and the applicant to transfer;

“(i) One acre from his Land Parcel No Dagoretti/Mutuini/1139 to the 1st and 2nd plaintiffs who shall hold the land in trust for the Estate of Hanna Kabura Kangethe;

(ii) 0.75 of an acre from his land Parcel No Dagoretti/Mutuini/1139 to the 3rd plaintiff who shall hold it in trust for the Estate of Gathuri Kabera; and

(iii) 0.25 of an acre from his Land Parcel No. Dagoreti/Mutuini/1139 to the 4th plaintiff who shall hold it in trust for the Estate of Daniel Ngure Kuria.

(c) The Deputy Registrar is hereby authorized to sign the relevant transfer documents, mutation forms, application for transfer of land and consent forms should the defendant fail to do so in terms of order (b) above.

(d) ELC Case No 758 of 2016 is found to be without merit and is dismissed.

(e) The cost of this suit shall be borne by the defendant”

The applicant brings the instant motion pursuant to

Rule 5(2)(b)

of the Court’s Rules in order to stay the execution of the foregoing orders pending appeal arguing, in satisfaction of the first requirement of that rule, that the Judge erred in relying on documents whose authenticity was questionable; in failing to acknowledge that the respondents did not enjoy quiet possession throughout their occupation of the suit property; that the learned Judge ought to have found that the respondents, having executed a lease agreement, their status on the land was that of lessees and not purchasers; and that the applicant lawfully and with the knowledge of the respondents subdivided the suit property.

To meet the second limb, the applicant has urged us to find that the appeal, if successful, will be rendered nugatory as he stands to lose his

bona fide

legal ownership of the suit property if it is transferred to the respondents; that he will be rendered destitute and face imminent loss of finance given the investment he has made on the property.

The respondents, in response, have insisted that the appeal is not arguable; that adverse possession was proved to the required standard as the court so found in Civil Case Nos. 2803 and 2804 of 1989 in favour of the respondents; that in dismissing the respondents’ application for stay of execution, the trial court, in a ruling delivered on 27

th

July, 2020, allowed the respondents to enforce the judgment but directed that once the suit property was subdivided and registered, the respondents were restrained from disposing of them for 90 days from the date of that ruling; and that as a result, the appeal will not be rendered nugatory. They also contend that the appeal will not be rendered nugatory because all the parties live on the suit land; that if the orders to subdivide the suit land and register the subdivisions were to be executed, and in the event the appeal succeeded the same were capable of being reversed.

In dealing with an application under

Rule 5(2) (b),

the court exercises original and discretionary jurisdiction. So that, irrespective of the outcome of a similar application before the trial below, a party can nonetheless make an independent application and even a similar application to this Court. See

Ruben & 9 Others vs.

Nderitu & Another

(1989) KLR 459.

In considering an application under this rule, two things must be demonstrated, that the appeal or intended appeal is arguable and not frivolous; and that the appeal or intended appeal, if successful, will be rendered nugatory if the order of stay is not granted. See

David Morton Silverstein vs. Atsango Chesoni,

Civil Application No. Nai 189 of 2001. We stress that the applicant must satisfy both principles; and that it is sufficient if a single

bonafide

arguable ground of appeal is raised in addition to showing that the appeal or intended appeal, if successful will be of no purpose for the applicant.

We are enjoined at this stage not to make definitive conclusions of either fact or law; and whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed, if allowed to happen, is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.

Obviously, the question of whether or not the learned Judge had sufficient evidence to prove adverse possession is itself arguable.

However, it is doubtful to us that the appeal, if successful, will be worthless and all else in vain. First, apart from the temporary order restraining the respondents from disposing of the suit land, there is uncontroverted evidence that the respondents live on the suit land. They have themselves explained that they do not intend to dispose of the land. We are persuaded by these factors that the appeal will not be rendered nugatory. Without satisfying the second limb, it follows that the applicant’s motion must fail.

Accordingly, it is dismissed, with costs being in the intended appeal.

Dated and delivered at Nairobi this 29

th

day of January, 2021.

W. OUKO, (P)

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

JUDGE OF APPEAL

R.N. NAMBUYE

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

JUDGE OF APPEAL

M.K. KOOME

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

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR