Seyianoi & 3 others v Chairman Osilalei Group Ranch & 6 others

prove their case on a balance of probabilities and, in so nding, dismissed their suit with costs to the respondents. 2 In their suit, the applicants sought orders for the 6th respondent, the District Land Registrar, Kajiado, to cancel or revoke Certicate of Titles for Land Reference No. Kajiado/Osilalei/173 and Land Reference No. Kajiado /Osilalei/179 (the suit properties) registered in the names of the 5th and 4th respondents, Boi Ole Parkisale and Lenkishirini Ole Tiong'a Nkulidi, and for the 6th respondent to visit the suit properties to ascertain the boundary between the parcel of land owned by the applicants and Osilalei Group Ranch as represented by the 1st, 2nd and 3rd respondents. Also sought was a permanent injunction against the Group Ranch to restrain it from allocating the suit properties to the 4th and 5th respondents, and an order of eviction. 3 Pursuant to the judgment, the applicants have sought to le an appeal against the judgment, and have brought a Notice of Motion dated 14th July 2021 under section 3A and 3B of the Appellate Jurisdiction Act, rules 5(2) (b) of the Court of Appeal Rules, 2010 seeking a stay of execution of the judgment, pending the hearing and determination of the appeal, and that the costs of this application be provided for. 4 The Motion was brought on nine grounds set out on its face, and was supported by the adavit of Mutunicet Maya Seyianoi, the 1st applicant ,sworn on the same date, and by written submissions wherein it was contended that, at the time the hearing was concluded in 2020, the 4th and 5th respondents, who were the main trespassers, had moved out of the suit properties together with their livestock on being apprehensive of the outcome and consequences of the judgment; that following delivery of the judgment dismissing the applicants’ suit, the 4th and 5th respondents relocated back to the suit properties with all their livestock and have destroy the vegetation, and are burning charcoal. 5 It was further contended that the applicants have lodged an appeal to this Court, and that unless a stay of execution is granted, the appeal will be rendered nugatory as the 4th and 5th respondents will continue to waste and alienate the applicants from the suit properties, and they will suer substantial loss; that, the respondents will not be prejudiced by the orders sought, and that it is in the interest of justice, equity and conscience that this application be granted; that the appeal had a high chance of success. 6 In a replying adavit sworn on 28thSeptember 2021, the 4th respondent, Boi Ole Parkisale opposed the application and deponed that the Motion is an abuse of the court process and thus unmerited. The 4th and 5th respondents also led written submissions. 7 In so far as applications led under rule 5 (2) (b) of this Court rules are concerned, the threshold requirement to be satised are amplied in the case of Republic vs Kenya Anticorruption Commission and 2 others [2009] eKLR thus: The court exercises unfettered discretion which must be exercised judicially. The applicant needs to satisfy the Court that first, the appeal or intended appeal is not frivolous, that is to say, that it is an arguable appeal. Second, the Court must also be persuaded that were it to dismiss the application for stay and later the appeal or intended appeal succeeds their results or success could be rendered nugatory”. 8 The above notwithstanding, in the application before us, the applicants are seeking a stay of execution of what is considered to be a negative order of the ELC, in that the court merely dismissed the applicant’s suit. The applicants did not seek an order of injunction to restrain the 4th and 5th respondents from occupying the suit properties. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/854/eng@2022-04-28 2

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9 In the case of Western College of Arts and Applied Sciences vs EP Oranga* 3 others [1976] eKLR, this Court explained: …what is there to be executed under the judgement the subject of the intended appeal? The High Court has merely dismissed the suit with costs. Any execution can only be in respect of costs in Wilson v Church that high court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay.” 10 Since the ELC dismissed the applicants’ suit, there is nothing to stay as a consequence of which there is nothing that demonstrates how the appeal will be rendered nugatory. 11 As such, the applicants having failed to satisfy the two threshold requirements, the Notice of Motion dated 14th July 2021 is dismissed. Costs in the appeal. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF APRIL, 2022. A.K. MURGOR .......................... JUDGE OF APPEAL A. MBOGHOLI-MSAGHA .......................... JUDGE OF APPEAL DR. K.I. LAIBUTA .......................... JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/854/eng@2022-04-28 3

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