Kitivi & another v Musyoki & another

3. Aggrieved by that judgment, the applicants led an appeal before the ELC at Machakos which was dismissed in a judgment delivered on 10th July 2024. Still dissatised, the applicants led a Notice of Appeal dated 26th July 2024 on which the present application is anchored. 4. The applicants’ case, in brief, is that they, and their late mother, moved into the property in the late 1980s at the invitation of their uncle (the respondent’s father); that they occupied a portion of one acre of the property where they have remained since then; that they have their dwelling houses on the property; that a dispute only arose in 2017 after the 1st applicant’s wife died and was in the process of being buried on the property when the respondents moved to court to prevent the burial and for the eviction of the applicants, which culminated in the judgment of the Chief Magistrate’s court of 9th June 2021 to which we have already referred. 5. The applicants maintain that they have been in occupation of the property for over thirty years and have submitted through learned counsel Mr. Loki that their intended appeal is arguable with high chances of success; that both courts below erred on the question whether a constructive trust had arisen in favour of the applicants and on application of the doctrine of estoppel in favour of the applicants; that as demonstrated through the photographs exhibited to the supporting adavit, the applicants’ homes are on the property and they are in occupation and should they be evicted, and the appeal succeeds, it will be rendered nugatory. 6. In addition to asserting that the application is incompetent, the respondents on the other hand have exhibited a copy of the title deed and maintain they are the registered proprietors of the property; and that the applicants have never owned one acre thereof as they claim and “are only squatters” thereon. 7. Learned counsel for the respondents Mr. A. Mutua submitted, on the strength of the decision of this Court in Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, that the application does not meet the threshold for the grant of the orders sought; that the intended appeal is frivolous as the respondents are the registered proprietors of the property and the applicants did not have a counterclaim before the trial court. 8. On the nugatory aspect, the respondents assert that the applicants are squatters who have only “constructed temporary structures” on the property but reside elsewhere, and that, that is why the respondents initiated the suit for orders of eviction. 9. We have considered the application, the adavits and the rival submissions against the principles guiding the Court in an application of this nature as stated by the Court in Stanley Kangethe Kinyanjui v Tony Ketter & Others (above). 10. As to whether the intended appeal is arguable, whereas the respondents as the registered proprietors of the property assert title, the applicants in their memorandum of appeal contend that the two courts below erred in failing to appreciate that the conduct of the parties was such that a constructive trust was created, and the respondents are estopped from evicting them. Bearing in mind that an arguable appeal is not one that will necessarily succeed but one that deserves the attention of the court, we are persuaed that the intended appeal is not frivolous. It is indeed arguable. 11. As to whether the intended appeal will be rendered nugatory, the object of the exercise of discretion under Rule 5(2)(b) of the Court of Appeal Rules is to preserve the subject matter of the appeal. The applicants maintain they are and have been in occupation of the property for over thirty years. The respondents on the one hand refer to the applicants as squatters on the property yet contend that they are not in occupation. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1942/eng@2024-12-20 2

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12. Considering that the trial court ordered the demolition and removal of the applicants’ structures on the property, eectively, their eviction, we are inclined, for present purposes, to take the view that the applicants are in occupation, and their eviction, prior to the determination of the appeal, if the appeal succeeds, will be to render the same nugatory. 13. Consequently, we grant prayer 3 of the application dated 30th July 2024 with the result that the respondents, whether by themselves, their agents or otherwise, are hereby restrained by order of injunction from evicting the applicants from the property or from demolishing the applicants’ structures on the property pending the hearing and determination of their appeal. 14. Costs of the application shall abide by the outcome of the appeal. DATED AND DELIVERED AT NAIROBI THIS 20 TH DAY OF DECEMBER, 2024. S. GATEMBU KAIRU, FCIARB ................................ JUDGE OF APPEAL P. NYAMWEYA .............................. JUDGE OF APPEAL L. ACHODE ................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1942/eng@2024-12-20 3

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