Case ID:171598

Thomas Mutere Kusienya v Jamin Juma Wekesa & 12 others [2021] eKLR

Case Metadata

Case Number:

Civil Application 157 of 2020

Parties:

Thomas Mutere Kusienya v Jamin Juma Wekesa,

Date Delivered:

05 Mar 2021

Case Class:

Civil

Court:

Court of Appeal at Kisumu

Case Action:

Ruling

Judge(s):

Martha Karambu Koome, Daniel Kiio Musinga, Stephen Gatembu Kairu

Citation:

Thomas Mutere Kusienya v Jamin Juma Wekesa & 12 others [2021] eKLR

Case History:

(An application for stay of execution pending the hearing and determination of an appeal from the judgment and decree of the Environment and Land Court of Kenya at Kakamega (N. A. Matheka, J.) dated 26th September, 2018 in Kakamega ELC Case No. 65 of 2013)

Court Division:

Civil

County:

Kisumu

History Docket No:

Environment and Land Case 65 of 2013

History Judges:

Nelly Awori Matheka

History County:

Kakamega

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 KISUMU

(

CORAM: KOOME, MUSINGA & GATEMBU, JJ.A

)

CIVIL APPLICATION NO. 157 0F 2020

BETWEEN

THOMAS MUTERE KUSIENYA..........................................APPLICANT

AND

JAMIN JUMA WEKESA..............................................1

ST

RESPONDENT

PATRICK MANYANDIO WEKESA...........................2

ND

RESPONDENT

KEPHER KHAMALA WEKESA................................3

RD

RESPONDENT

CHARLES WECHENJE...............................................4

TH

RESPONDENT

FREDRICK MULONNGO WEKESA.........................5

TH

RESPONDENT

FREDRRICK KENYATTA WEKESA.........................6

TH

RESPONDENT

GEOFREY KHISA WEKESA.......................................7

TH

RESPONDENT

PHANICE OMULEYI....................................................8

TH

RESPONDENT

JUDITH MWACHI.........................................................9

TH

RESPONDENT

CLEOPHAS MATEKWA.............................................10

TH

RESPONDENT

JUMA WALUBENGO...................................................11

TH

RESPONDENT

AGGREY ICHITWA.....................................................12

TH

RESPONDENT

FRANCIS WEKESA.....................................................13

TH

RESPONDENT

(An application for stay of execution pending the hearing and determination of an appeal from the judgment and decree of the Environment and Land Court of Kenya at Kakamega (N. A. Matheka, J.) dated 26

th

September, 2018

in

Kakamega ELC Case No. 65 of 2013)

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

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

**

RULING OF THE COURT

[1]

The instant Notice of Motion, dated 29

th

June, 2020 is taken out by

Thomas

Mutere Kusienya

(the applicant). He is seeking an order of stay of execution of the judgment delivered on 28

th

September, 2018 in Kakamega ELC No 65 of 2013

(N. A. Matheka J.,) In the said suit the applicant had sought in the main, an order declaring him the rightful owner of three parcels of land being

LR No

Kakamega/Lugari/2079, 2076 and 2361

(suit land) which are adjacent to his own land and which he claimed to have used peacefully until February, 2013 when the respondents forcefully invaded the suit land and interfered with his right to occupation.

[2]

In a kind of a preliminary objection, the respondents opposed the suit highlighting that the matter was either

sub-judice

or

res-judicata,

having been determined in:-

1. Kakamega Misc. Award No 106 of 2000

2. Kakamega HCCCA No 145 of 2003

3. Lugari Land Dispute Tribunal No 9 of 2000.

[3]

Upon considering the matter this what the learned Judge ruled in a pertinent paragraph of the judgment:-

“On perusal of the files in the above cases I find that land parcel

Kakamega/Lugari/2019 were subdivisions of land parcel Kakamega/ Lugari/101 which were the suit properties in the initial battle between the fathers of the present-day parties hereby Wekesa Sinoino Alfunzi and Marko Kusienya Sinino. The award in Lungari Land Disputes Tribunal which was adopted by the court in Misc. Award No. 106 of 2000 giving the 1

st

defendant’s father 63 out of 80 acres that formed part of the original land parcel Kakamega/Lugari/101. The application in that matter is coming up on the 19

th

September, 2018. Kakamega HCCA No. 145 of 2003 the appeal allowed the appellants/defendants herein to pursue their application in the in the Misc. Application case in the judgement dated 18

th

April, 2013. The plaintiff in this case confirmed that he was the administrator of the estate of one Mark Kusienya Sinino who was his father and the respondent in Kakamega HCCA No 145 of 2003 (having carried out succession vide Kakamega High Court Succession Cause No 553 of 2009).

The plaintiff then files this case on the 26

th

February 2013 knowing very well of the existence of the other cases namely Kakamega Misc. Award No 106 of 2000, Kakamega HCCC No 145 of 2003 and Lugari Land Dispute Tribunal No 9 of 2000, touching on the same subject matter and the same parties. For those reasons this case is res-judicata (sic) it cannot go into the merits of this case. I therefore strike out this case with costs to the defendants.”

[4]

By his affidavit in support of the motion, the applicant emphasised that he is aggrieved by the aforesaid judgment and lodged an appeal on 18

th

December, 2018. Pending the hearing and determination of the appeal, he is apprehensive that unless an order of stay of execution is issued to preserve the suit land, the appeal will be rendered nugatory and he will suffer irreparable loss and that unless the order of stay is granted the appeal which is otherwise arguable and deserving to be heard on merit will be overtaken by events and rendered nugatory. On the other hand, he argued that the respondents will not suffer any prejudice if the orders are granted.

[5]

We have deliberated on this application which was heard virtually vide ‘GO TO MEETING’ Platform pursuant to the Court of Appeal Practice Direction to

mitigate the spread of COVID - 19 Pandemic. We have not seen any replying affidavit by the respondents. Notwithstanding the application is not opposed, that does not lessen the burden placed on this Court by the imperatives of the provisions of

Rule

5 (2) (b)

of this Court Rules. That is, for the application to succeed, the applicant must establish that; the appeal is arguable and not frivolous and that if the stay order sought is not granted the appeal will be rendered nugatory. See the case of

Ismael Kagunji Thande vs. Housing Finance Kenya Ltd

Civil Application No. Nai. 157 of 2006

(unreported). The principles to bring to bear on whether or not to grant an order of stay of execution were set out thus:

“The jurisdiction of the Court under Rule 5 (2) (b) is not only original but also discretionary. Two principles guide the court in exercise of that jurisdiction. These principles are well settled. For an applicant to succeed, he must not only show that his appeal or intended appeal is arguable but also that unless the Court grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory. (See also

Githunguri vs. Jimba Credit Corporation Ltd

. No. 2 [198] KLR 838.)”

[6

] That said, the only order issued by the learned Judge was to strike the suit with costs to the respondents. In other words, this was a negative order that was not capable of execution save for the order of costs which does not seem to concern the applicant as he is concerned with the suit land. In the case of

Western

College Farts And Applied Sciences vs. Oranga & Others

[1976] KLR 63

this Court whilst considering whether an order of stay can be granted in respect of a

negative order stated: -

“

But what is there to be executed under the judgment, the subject

of the intended appeal the High Court has merely dismissed the suit with costs. An execution can only be in respect of costs……

The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court Judgment for this court in an application for stay to enforce or restrain by injunction.”

[7]

In this case we have asked ourselves the same question, what is to be stayed arising from the order where the applicant’s suit was struck out? The applicant

was not ordered to do anything or refrain from doing anything. Although one may argue that the issue of whether the learned Judge was justified to strike the suit may or may not be an arguable point, the applicant has further to demonstrate how the appeal arising from a negative order was going to be rendered nugatory.

[8]

The applicant having not demonstrated how an appeal from a negative order striking out a suit will be rendered nugatory, we have come to the conclusion that the motion dated 29

th

June, 2020 cannot succeed and is for dismissal. We make no order as to costs since the motion was not opposed.

Dated and delivered at Nairobi this 5

th

day of March, 2021.

M. K. KOOME

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

JUDGE OF APPEAL

D. K. MUSINGA

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

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb.

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

JUDGE OF APPEAL

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

Signed

DEPUTY REGISTRAR