Case ID:185892

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