Kamau & another (Administrators of the Estate of the Late Lucy Nyambura alias Rachael Nyambura Kamau) v Gathecha & another

renting, selling, charging, sub-dividing or in any other way interfering with parcel of land known as Ruiru Kiu Block 2/4268 pending the hearing and determination of this application and thereafter the hearing and determination of the intended appeal against the judgment and decree in ELC Case No. 136 of 2020; Justus Ndungu Kamau & Judy Wanjiku Kamau (Administrators of the Estate of the late Lucy Nyambura Alias Rachael Nyambura Kamau-versus- Joseph Kimani Gatheca & Another. c. That this honourable court be pleased to issue a stay of any further proceedings arising from the judgment and decree in ELC Case No. 136 of 2020; Justus Ndungu Kamau & Judy Wanjiku Kamau (Administrators of the Estate of the late Lucy Nyambura Alias Rachael Nyambura Kamau-versus- Joseph Kimani Gatheca & Another pending the hearing and determination of this application and thereafter the hearing and determination of the intended appeal. d. That the costs of and incidental to this application do abide the outcome of the intended appeal.” 2. The motion is supported on the grounds on the face of the motion and an adavit sworn by Judy Wanjiku Kamau Kiruri, ( the 2nd applicant herein) who deposed that being aggrieved and dissatised with the judgment delivered by MD Mwangi J, in Nairobi ELC Case No. 136 of 2020, on 28th November 2022, they had led a Notice of Appeal dated 29th November 2022, signifying their intention to appeal against the aforesaid decision and that the 1st respondent was currently pursuing the sale of the suit land as he had issued advertisements. 3. She further deposed that they would stand to suer substantial loss and irreparable damage if an order of injunction was not issued as prayed and further that the application had been made without unreasonable delay. 4. The motion was opposed vide a replying adavit sworn on 9th September 2024, by Joseph Kimani Gathecha the 1st respondent herein, who deposed that the property known as Ruiru/Kiu Block 2/4268 was non-existent the same having been sub-divided into 10 plots in the year 2006; that of these 10 plots, numbers 5798, 5799, 5803 and 5800 were owned by one Peter Kiruthi who was not a party in the impugned judgment; that this Court could not issue orders against Peter Kiruthi without aording him an opportunity to be heard, as this would oend the principles of natural justice and further that the suit property having been sub divided before the institution of the suit, the same did not exist and there was no basis upon which the orders being sought could be granted. 5. He further deposed that that ELC suit No. 136 of 2020 had been fully nalized save costs (which had already been taxed) and that as such there were no proceedings to stay. 6. The 2nd applicant further lled a further adavit dated 13th September 2024 basically reiterating the contents of the supporting adavit in support of the motion dated 1st July 2024. 7. When the matter came up for plenary hearing on 18th September 2024, Mr. Keyongo holding brief for Mr. Saende appeared for the applicants and relied on his written submissions dated 23rd July 2024, which he briey highlighted orally in Court. Mr. Njonjo on the other hand appeared for the 1st respondent and restricted himself to the replying adavit on record sworn by the 1st respondent on 9th September 2024 and written submissions of even date. There was no appearance on the part of the 2nd respondent. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1948/eng@2024-12-20 2

page 2 of 5

8. It was submitted for the applicants that they had an arguable appeal as demonstrated by a Draft Memorandum of Appeal annexed to the supporting adavit dated 1st July 2024, as they had contended inter alia that the Estate of Lucy Nyambura was the legitimate and rightful owner of the parcel of land known as Ruiru/Kiu Block 2/4268 having bought 20 shares from the respondent company on 4th June 1968 and thereby becoming a fully paid up member. 9. It was further submitted that the applicants stand to lose a unique parcel of land acquired many decades ago on account of an alleged purchaser that supposedly acquired interest in the land on 3rd November 2005 and further that the 1st respondent’s nancial capacity was unknown, with the glaring risk of not having the capacity to pay compensation if the appeal was successful. 10. On the other hand, it was submitted for the 1st respondent that before commencement of this suit, there were subdivisions and a mutation registered in the year 2006 to the suit property. 11. That, some of the sub-divisions were owned by dierent persons who were not parties to this suit and the applicants did not see it t to enjoin to these proceedings those parties who owned dierent parcels of land which were excised out of land parcel number Ruiru/Kiu Block 2/4268. 12. It was further submitted that ELC No. 136 of 2020 was a concluded matter and that the judge therein became functus ocio upon delivery of judgment on 28th November 2022. The only outstanding thing was the execution in respect to the costs, which had already been taxed. It was contended that there were no proceedings to stay, unless the applicants were seeking for stay of execution, which was not one of the orders being sought in the instant motion. 13. It was further submitted that staying of proceedings was a radical remedy which could only be granted in exceptional cases and that it was a matter of right rather than discretion. For this proposition, reliance was placed on a 5 Judge Bench decision of the High Court in the case of William Odhiambo Ramogi & 2 Others v The Honourable Attorney General & 3 Others [2019] eKLR. 14. We have carefully considered the motion, the grounds thereof, the supporting adavit, the replying adavit, the further adavit, the rival oral and written submissions by the parties, the cited authorities and the law. 15. The applicants’ motion is brought inter alia under Rule (5) (2) (b) of this Court’s Rules. The principles for our consideration in the exercise of our unfettered discretion under Rule 5 (2) (b) to grant an order of stay of execution/ injunction or stay of proceedings as the case maybe are now old hat. Firstly, an applicant has to satisfy the court that he/she has an arguable appeal. However, this is not to say that it must be an appeal that will necessarily succeed, but suce to state that it is an appeal that is not frivolous and/or idle. 16. Secondly, an applicant has to demonstrate that unless an order of stay is granted, the appeal or intended appeal would be rendered nugatory. An applicant has to satisfy the Court on both limbs. These principles were summarized by this Court (dierently constituted), in the case of Stanley Kangethe Kinyanjui vs. Tony Ketter & Others [2013[ eKLR as follows: “i. In dealing with Rule 5(2) (b) the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the trial Judge’s discretion to this Court. v. The discretion of this Court under Rule 5(2) (b) to grant a stay of injunction is wide and unfettered provided it is just to do so. vi. The Court becomes seized of the matter only after the notice of appeal has been led under Rule 75. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1948/eng@2024-12-20 3

page 3 of 5

vii In considering whether the appeal will be rendered nugatory the Court must bear in mind that each case must depend on its own facts and peculiar circumstances. viii. An applicant must satisfy the Court on both the twin principles. ix. On whether the appeal is arguable, it is sucient if a single bona de arguable ground of appeal is raised. x. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous. xi. In considering an application brought under Rule 5(2) (b), the Court must not make denitive or nal ndings of either fact or law at that stage as doing so may embarrass the ultimate xii. The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means triing. xiii. Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen will be reversible, or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 17. Turning to the rst limb, we have looked at the annexed Draft Memorandum of Appeal and we are not satised that the applicants have an arguable appeal for the following reasons; it is imperative to note that the applicants are seeking inter alia an order of injunction restraining the respondents from entering, using, transferring, wasting, renting, selling, charging, subdividing or in any other way interfering with the parcel of land known as Ruiru/Kiu Block 2/4268 pending the hearing and determination of an intended appeal. 18. The 1st respondent has vide a replying adavit sworn on 9th September 2024, deposed that the suit property known as Ruiru Kiu Block 2/4268 was non-existent the same having been subdivided into 10 plots which were now owned by dierent individuals who were not parties to the instant suit, a fact that the applicants did not controvert in the further adavit sworn by the 2nd applicant on 13th September, 2024. 19. In essence therefore, if this Court were to go ahead and issue injunctive orders against non-existent property, the same would be tantamount to issuing court orders in vain; a position that this Court frowns upon. 20. Additionally, during the plenary hearing of the motion, the applicants admitted that the assertion of the 1st respondent’s nancial capacity being unknown was not supported by any evidence and therefore their apprehension that he may not be in a position to compensate them in the event of the appeal being successful was clearly without basis. 21. We are of course mindful of the fact that an arguable appeal is not one that must necessarily succeed. We will therefore say no more regarding this issue at this stage, lest we embarrass the bench that may eventually be seized of the appeal. Ultimately, we are not satised that the applicants have an arguable appeal. 22. The applicants having failed to satisfy us on the rst limb in an application of this nature, it then goes without saying that the applicants’ prayer for an order of injunction is not merited and the same must only suer one fate which is dismissal. In any event and as regards the nugatory aspect and as we have noted above, the applicants have admitted that their contention that that the 1st respondent’s nancial capacity was not known was not supported by any evidence. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1948/eng@2024-12-20 4

page 4 of 5

23. Ultimately therefore, the applicants having failed to satisfy us on both limbs under Rule 5(2)(b) of this Court’s Rules, the prayer for an order of injunction fails. 24. Turning to the prayer for an order of stay of proceedings, it is indeed not in dispute that the impugned judgment was delivered on 28th November 2022 and the court has already taxed the party and party bill of costs and the 1st respondent has moved on with execution in respect to the taxed costs. 25. We are alive to the fact that stay of proceedings is a grave matter, to be entertained only in the most deserving cases as it impedes the right to expeditious trial. It is a discretionary power exercisable by the Court upon consideration of the facts and circumstances of each case. See David Morton Silverstein VS. Atsango Chesoni (2002) eKLR: - where this Court stated thus: instant case, we note that the court in ELC Case Number 136 of 2020, is already functus ocio having rendered judgment thereon and the applicants have not even sought an order of stay of execution, and the applicant has not demonstrated that the taxation proceedings therein are irregular. 26. Applying the test laid out in the above case which we have cited and based on the circumstances in this case, we are of the considered opinion that this is not a proper case upon which we can grant an order of stay of proceedings. 27. The totality of our ndings therefore is that the applicants’ motion dated 1st July 2024 is without merit and the same is hereby dismissed in its entirety with costs to the 1st respondent. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. F. SICHALE ............................ JUDGE OF APPEAL F. TUIYOTT ............................ JUDGE OF APPEAL F. OCHIENG ............................ 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/2024/1948/eng@2024-12-20 5

page 5 of 5