Koigi v Ngonyo & 16 others

STEPHEN MAINA SANBAI ........................................................ 16TH DEFENDANT RULING 1. Vide this Motion the Plainti seeks Orders that; a. The rm of Messrs KFK Advocates LLP be granted leave to come on record as advocates for the Plainti/Applicant in place of Messrs. Kamiro R.N & Co. Advocates. b. The orders/Judgement of the Hon Court of 24/2/2022 be enforced by the Ocer Commanding Station (OCS) Juja police station. c. This Hon Court be pleased to authorize the Plainti/Applicant to appoint a licensed Auctioneer to evict and remove the Defendants/Respondents, their families or any person claiming through them from Land parcel No. Juja/Kiaura/10087/47 and to demolish all structures thereon. d. This Hon Court be pleased to order the OCS Juja Police station to provide armed police personnel to provide any security during the eviction and demolition exercise. e. The Defendants be condemned to bear the Plainti’s costs, the auctioneers and police costs of carrying out the eviction and demolition exercise. 2. The Application is premised on grounds reiterated in the Supporting Adavit of Teresiah Wanjiku Koigi that Judgment was delivered herein on 24/2/2022 directing the Defendants to vacate Land parcel No. Juja/Kiaura/10087/47 (the suit land) and in default eviction notice to issue; the said Judgment had not been varied, reviewed nor set aside by any Court of competent jurisdiction; the Plainti is desirous of taking possession and developing the suit land yet the Defendants have refused to comply with the orders herein nor comply with notices served upon them to that end. 3. The Defendants opposed the Application through the Replying Adavit sworn on 19/3/2024 which on its face opposes the Application dated 27/2/2024 – which Application is not on record. In his submissions dated 27/5/2024 in support of the motion, the Plainti refers to this Replying Adavit as the one objecting to her instant Application. 4. In the Replying Adavit, the 1st Defendant conceded the Judgment declaring the Plainti as the owner of the suit land by virtue of holding the Grant in respect of the estate of Paulina Wabacha who was the initial owner of the suit land. However, he further deponed that the Defendant led for Revocation of the said Grant in Succ. Cause No. 580 of 2014 on grounds that the Plainti obtained it fraudulently which cause is live in Court. The 1st Defendant urged the Court to stay the proceedings herein pending the outcome of the said succession cause. 5. In a rejoinder the Plainti swore a Further Adavit on 15/4/2024 and averred that she is a stranger to the aforesaid succession proceedings and in any event, there is no co-relation of the instant proceedings and the succession suit. That no such evidence of the succession suit has been tendered by the Defendant and no explanation has been tendered for the delay in prosecuting an Application for revocation of grant noting the succession suit was led in 2014. 6. On 24/4/2024 directions were taken for parties to canvass the Application by way of submissions. 7. The record contains the Plainti’s submissions dated 27/5/2024 led by KFK Advocates LLP. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14069/eng@2024-12-19 2

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8. The Plainti drew a singular issue for determination owing from the 1st Defendant’s which is whether the Hon Court has jurisdiction to stay proceedings herein pending the outcome of the alleged proceedings in Succ. Cause No. 580 of 2014. The answer was in the negative. The Plaintis pointed out that the Defendant is not objecting to the Judgment herein but asks for stay of proceedings pending the outcome of the succession cause. That there are no proceedings capable of being stayed herein as sought by the Defendant as the Court is now functus ocio. That in any event the law has inbuilt remedies as envisaged under Section 76 of the Law of Succession Act that if it turns out a Grant was fraudulently obtained, all dealings relating to such property will automatically be revoked. 9. The Defendants did not le any submissions. 10. The main issue for determination is whether the Application is merited. 11. The gist of the Plainti’s motion seeks execution of the Judgment delivered herein by way of eviction. The Plainti is asking the Court to authorize him to appoint a licensed Auctioneer to evict and remove the Defendants, their families or any person claiming through them from the suit land and to demolish all structures thereon. 12. In the absence of any orders of stay of execution, the Court is unable to halt the process of execution which is a lawful process post judgement. The Application is allowed. No orders as to costs. The Defendants’ Motion dated 19/4/2024 13. By this Application the Defendans crave for orders THAT; a. Spent. b. Spent. c. Spent. d. Pending the hearing and determination of Succession Cause No. 580 of 2014 the Honorable Court be pleased to issue an order of status quo. e. Pending the hearing and determination of Succession Cause No. 580 of 2014 the Honorable Court be pleased to issue a temporary injunction staying execution of Judgement issued on 24th Judgement 2022 (sic). f. Costs of this Application be provided for. 14. The Application is based on the grounds that Judgement was delivered herein on 24/2/2022 and subsequently the Plainti has moved the Court vide her Application dated 27/2/24 seeking the Defendants’ eviction; the Defendants have been in occupation of the suit land having bought it from the original owner, the late Paulina Wanjiku Wabacha; the Plainti fraudulently obtained a Grant in respect of the late Paulina in Succ. Cause No. 580 of 2014 whereby there is a pending Application for revocation of grant led by the Defendants herein slotted for hearing on 28/5/24 before Hon Mutua at Thika Chief Magistrate’s Court hence the Application. 15. In a Supporting Adavit of even date, Lincoln Wariua Ngonyo, the 1st Defendant deponed on his behalf and on behalf of the rest of the Defendants and annexed copies of the Application for Revocation of Grant (LWN-1) and copy of the Plainti’s Replying Adavit led by Kamiro & Co. Advocates (LWN-2). He averred that the Plainti has intentionally derailed the hearing and conclusion of the Application for revocation of grant. That the Defendants have been saying on the suit land for https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14069/eng@2024-12-19 3

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more than 15 years having purchased the suit land from the late Paulina before her demise. That there is no prejudice to be suered by the Plainti if the Application is allowed as prayed. 16. The Application is opposed vide the Plainti’s grounds of opposition dated 20/5/2024 on the following grounds; a. That this Hon Court lacks jurisdiction with regard to the Application dated 19/4/2019 (sic). b. That prayers being sought by the Applicant can only be canvassed in the alleged Succession Cause No. 580 of 2014 and which the Respondent is a stranger to. c. That this Hon Court lacks jurisdiction to stay its own Judgment issued on 24/2/20222 as the same has not been appealed to or reviewed and time for appeal/review has since lapsed. d. That the supporting adavit by Lincoln Wairua Ngonyo is fatally defective as it oends the provisions of Order 1 Rule 13 (1) & (2) of the Civil Procedure Rules. e. The Application by the Applicant ought to be dismissed with costs to the claimant. 17. Additionally, the Plainti led her Replying Adavit sworn on 20/5/2024. She avowed that she is a stranger to any succession proceedings against her over the suit land she currently owns by virtue of the Judgment entered herein in her favor. That no explanation has been tendered for the delay in concluding the succession proceedings if any. She urged the Court strike out the instant Application. 18. The Application was prosecuted by way of written submissions. On behalf of the Defendant the rm of Mburu Machua Advocates led submissions dated 20/5/2024 while the Plainti’s submissions dated 27/5/2024 were led by KFK Advocates LLP. 19. Is the Application merited? 20. The main prayers urge the Court to grant status quo here pending the outcome of Succ. Cause No 580 of 2014. Further the Court has been asked to grant a temporary injunction staying execution of Judgement (sic). 21. The legal underpinnings for the twin prayers are found in Order 40 Rule 1 of the Civil Procedure Rules which provides; “ 1. Cases in which temporary injunction may be granted [Order 40, rule 1.] Where in any suit it is proved by adavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the Defendant threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the Plainti will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the Court thinks t until the disposal of the suit or until further orders.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14069/eng@2024-12-19 4

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22. The guiding principles for the grant of orders of temporary injunction are well settled and are set out in the judicial decision of Giella Vs. Cassman Brown (1973) E A 358. This position has been reiterated in numerous decisions from Kenyan Courts and more particularly in the case of Nguruman Limited Vs. Jan Bonde Nielsen & 2 Others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that; “ In an interlocutory injunction Application, the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour. These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the Applicant is expected to surmount sequentially.” 23. Has the Defendant established a prima facie case to warrant the orders sought? Am afraid not. The Application seeks status quo orders pending the outcome of Succ. Cause No. 580 of 2014. As it stands since the suit was concluded and Judgment delivered on 24/2/2022, there are no live proceedings herein for the Court to anchor the prayer for status quo. 24. Regarding the prayer for temporary injunction, the 1st Defendant has not shown any irreparable harm he stands to suer in the event the Application is declined. This Court having determined this suit as a trial Court lacks jurisdiction to grant temporary injunction as prayed post-judgement. Such orders can only be issued by this Court in the context of an appellate Court. The guiding law is found in Order 42 Rule 6 (6) of the Civil Procedure Rules that; “ (6) Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate Court or tribunal has been complied with.” 25. The upshot of the forgoing is that the Application is bereft of merit. It is dismissed with costs to the Plainti. 26. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 19TH DAY OF DECEMBER, 2024 VIA MICROSOFT TEAMS. J G KEMEI JUDGE Delivered online in the presence of; Plainti/Applicant – Absent Ms. Ndavuta HB Machua for 1st – 16th Defendants/Respondents Court Assistant – Phyllis https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14069/eng@2024-12-19 5

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