Case ID:185892
Parties: None
Date Delivered: None
Case Type: None
Court: None
Judges: None
Citation: None
Kamunya & 24 others v Patmwa Limited (Civil Application E084 of 2021) [2021] KECA 163 (KLR) (19 November 2021) (Ruling)
Case Metadata
Case Number:
Civil Application E084 of 2021
Parties:
Kamunya & 24 others v Patmwa Limited
Date Delivered:
19 Nov 2021
Case Class:
Civil
Court:
Court of Appeal at Nairobi
Case Action:
Ruling
Judge(s):
Daniel Kiio Musinga, Hellen Amolo Omondi, Kibuya Imaana Laibuta
Citation:
Kamunya & 24 others v Patmwa Limited (Civil Application E084 of 2021) [2021] KECA 163 (KLR) (19 November 2021) (Ruling)
Court Division:
Civil
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
Kamunya & 24 others v Patmwa Limited (Civil Application E084 of 2021) [2021] KECA 163 (KLR) (19 November 2021) (Ruling)
Neutral citation:
[2021] KECA 163 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Application E084 of 2021
HA Omondi, DK Musinga & KI Laibuta, JJA
November 19, 2021
Between
Philip Kamunya
1
st
Applicant
Ibrahim Ongiri
2
nd
Applicant
Nelson Ikhuta
3
rd
Applicant
Samson Sagwe
4
th
Applicant
Joseph Kamau
5
th
Applicant
Robert Maina
6
th
Applicant
Alice Gathoni
7
th
Applicant
Simon Peter Weru
8
th
Applicant
James Makori
9
th
Applicant
Geoffrey Muigai
10
th
Applicant
Pius Seif
11
th
Applicant
Richard Atambo
12
th
Applicant
James Mwaniki
13
th
Applicant
George Onsongo
14
th
Applicant
Aloyce Ongoto
15
th
Applicant
Joyce Obadia
16
th
Applicant
Eunice Njoki
17
th
Applicant
Miriam Onyango
18
th
Applicant
Nathan Nyakundi
19
th
Applicant
Catherine Nduku
20
th
Applicant
Charles Githui
21
st
Applicant
Charles Yewa Oloo
22
nd
Applicant
David Maingi
23
rd
Applicant
Evans Munyasia
24
th
Applicant
Alex Odhiambo
25
th
Applicant
and
Patmwa Limited
Respondent
(An application for stay of execution pending the lodging, hearing and determination of an intended appeal from the Ruling of the Environment and Land Court at Nairobi (E. Obaga, J.) delivered on 4th March 2021 in E.L.C. No. 56 of 2012)
Ruling
1.
The applicants’ Notice of Motion dated 10th March 2021 seeks stay of the judgment and decree issued in Nairobi
ELC
No.56 of 2012 (
O.S
.) on 4th March 2021 pending hearing and determination of an intended appeal. The 25 applicants reside on a property known as L.R No. 9042/126 situate at Embakasi, Muradi area (the suit property), where they say that they have carried out permanent developments.
2.
The applicants filed a suit against the respondent, the registered proprietor of the suit property, claiming that they had resided on the suit property for more than twenty (20) years, and urged the Environment and Land Court to declare them owners thereof under the doctrine of adverse possession.
3.
The respondent opposed the suit but did not file any counterclaim seeking eviction of the applicants. However, the respondent filed an application for striking out of the applicants’ suit and for their eviction, on grounds that the suit was
res judicata
. It argued that the applicants were members of Airport View Neighbours Group, which, through its officials, had unsuccessfully sued the respondent in ELC NO. 335 of 2010 seeking orders of adverse possession. Upon dismissal of the suit, the applicants, in their individual capacities, filed ELC No. 56 of 2012, which was struck out, and the trial court ordered their eviction from the suit property.
4.
The applicants, having filed a notice of appeal against the impugned decision, now urge this Court to stay the orders of the trial court. They contend that their intended appeal is arguable and, unless the orders sought are granted, they shall be evicted from their respective homes, thus rendering the appeal, (if successful) nugatory.
5.
The respondent, on the other hand, contends that the intended appeal is not arguable and that the appeal, if successful, shall not be rendered nugatory even if the applicants are evicted from their residences erected on the suit property.
6.
Upon perusal of the application, the parties’ affidavits and submissions, and bearing in mind the principles under which this Court determines rule 5(2)(b) applications as summarized in
Stanley Kangethe Kinyanjui v Tony Ketter & Others [2013] eKLR
, we are satisfied that the intended appeal is arguable. We are also persuaded that unless we grant the orders sought, the applicants shall be evicted from the suit property before their intended appeal is heard and determined, in which event the appeal, if successful, shall be rendered nugatory.
7.
Consequently, we hereby grant stay of execution of the judgment and decree issued in Nairobi ELC Case No. 56 of 2012 (O.S.) and in particular the eviction orders against the applicants pending hearing and determination of the intended appeal.
8.
Each party shall bear its own costs of the application.
DATED AND DELIVERED AT MOMBASA THIS 19TH DAY OF NOVEMBER, 2021.
D. K. MUSINGA, (P)
.....................................
JUDGE OF APPEAL
H. A. OMONDI
.......................................
JUDGE OF APPEAL
DR. K. I. LAIBUTA
......................................
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR