Samuel Waiya Githukurio v Stephen Mungai Wai & 3 others

being aggrieved, lodged an appeal in Nakuru Civil Appeal No. 75 of 2019 which he contends raises arguable issues and that its outcome directly affects the proceedings in Nyahururu ELC Petition No. 20 of 2017 and Nyahururu CMC ELC No. 140B of 2018 wherein the 1st respondent is proceeding rapidly to tax his bills of costs, and as a matter of fact, those matters were fixed for taxation on 7 th October, 2019 and 7th November, 2019 respectively. 5. Pending the hearing and determination of the aforesaid appeal, the applicant filed the instant motion dated 11 th October, 2019 seeking a stay of proceeding in Nyahururu CMC ELC No. 140B of 2018 and Nyahururu ELC Petition No. 20 of 2017. All the respondents have not filed any response despite having been served with the notice by the court registry. This application came up for hearing by consideration of the record and submissions without appearance by counsel or parties pursuant to the Court of Appeal Practice Directions to mitigate the spread of COVID - 19 Global Pandemic. 6. We have considered the application which is brought under the provisions of Rule 5 (2) (b) of this Court Rules. The applicable guidelines in regard to orders sought in this regard are well settled. For the applicant to succeed, he 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.)” 7. It is also self-evident that the learned Judge ruled that although the Tribunals exceeded their mandate and the court has jurisdiction to nullify an award of a tribunal if made outside its jurisdiction, however, she ruled that jurisdiction is only exercisable where such decision had not transmuted into a judicial determination through adoption as a judgment of the court. The Judge further stated that since the award of the Nyeri Provincial Land Dispute Tribunal was adopted by the Principal Magistrate’s Court at Nyahururu, it ceased to exist on its own and thus, could not be the subject of a declaration but could only be varied, vacated, set aside or reviewed by the same court or by an appellate court. The court therefore struck out the petition on the grounds that although the Tribunals had no jurisdiction to determine issues of title, that award issued without jurisdiction had crystalized and the ELC’s jurisdiction was wrongly invoked by way of a petition instead of an appeal. 8. In view of those findings, we are persuaded that the applicant’s appeal is eminently arguable. Foremost, the applicant was not party to the proceedings before the tribunals and yet he was affected by the award that was adopted by the Magistrate’s court. Secondly, his land was excised in execution of those orders which the learned Judge found were made without jurisdiction. These are arguable matters and as this Court stated in the case of Ahmed Musa Ismael vs. Kumba Ole Ntamorua & 4 others [2014] eKLR “An arguable appeal need not raise a multiplicity of explorable points, a single one would suffice. That point or points need not be such as must necessarily succeed on full consideration of the appeal – it is enough that it is a point on which there can be a bona fide question to be explored and answered within the context of an appellate adjudication.” 9. Whether or not the appeal will be rendered nugatory if an order of stay of proceedings is not granted, we would also answer this in the affirmative. The applicant has demonstrated that the 1 st respondent has proceeded to tax the bills of costs and further proceedings may ensue to his detriment and the outcome of the intended appeal if successful, may be rendered nugatory. It is for the aforesaid reasons that we find the applicant’s application has merit. We according allow it in terms of prayer No 3 of the Notice of Motion dated 2 nd October, 2019 as follow: 1. Pending the hearing and determination of Nakuru Civil Appeal No 75 of 2019, a stay of proceedings in Nyahururu CMC NO. 140B of 2018 and Nyahururu ELC Petition No 20 of 2017 are hereby stayed. 2. We make no order as to costs DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2021. M. K. KOOME ………………………. JUDGE OF APPEAL K. M’INOTI ……………………….. JUDGE OF APPEAL

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A. K. MURGOR ……………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR

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