Rwoma v Ntururu & another

direction for hearing the first two applications simultaneously by way of written submissions and the court framed the sole issue for the submissions of the parties as to whether leave had been granted to the 1 st Defendant to appeal against the Ruling dated28 4.5.2026. before the said submissions were filed the Defendant filed the 3 rd Application seeking leave to appeal against the Ruling dated 28.4.2026 and the court directed that the three applications be heard together hence this composite Ruling. 3. Turning to the individual applications, the 1 st Application herein seeking the following orders; a) THAT the Honourable court be pleased to amend the lawful court order issued on the 11.05.2026, by adding that the OFFICER COMMANDING STATION at NKARARRO POLICE STATION do provide security at the time the Applicant shall destroy all crops on sugarcane in regard to the subject matter, LR NO. TRANSMARA/ NKARARO/ 158. b) THAT the Honourable court be pleased to extend time for execution of the said order herein. c) And a prayer for costs. 4. The 1st Application was supported by a sworn affidavit of Elijah Okemwa, Advocate for the Plaintiff/Applicant herein, and was premised on the following grounds; a) THAT the lawful court order herein was issued and obtained by the Applicant on the 11.05.2026. b) THAT the Applicant cannot be able to execute the said court order without security as the Respondent is a furious man. Hence the Applicant requires security before execution of the same. c) THAT it would be just and fair if the Honourable court can amend the said order issued on the 11.05.2026, by ordering or directing the OSC at NKARARO POLICE STATION to provide security during the execution of the aforesaid order. P a g e 2 | 14

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5. In response to the 1st Application herein, the Defendants/ Respondents herein filed a Notice of Motion filed under Certificate of urgency dated 26.06.2026 which was withdrawn vide a Notice of Withdrawal dated 23.07.2026 and a new application in the form of a Notice of Motion filed under Certificate of Urgency dated 25.07.2026 (the 2 nd application) was filed by the Applicants herein seeking the following orders; a) Pending the hearing and determination of the instant application, the Honourable court be pleased to grant an interim order of stay of execution of the ruling and order delivered and issued by this Honourable court on 28.04.2026 and 11.05.2026 respectively together with all consequential orders arising therefrom and/or attendant thereto. b) Upon granting prayer (b) hereinabove the 1st defendant/applicant requests the Honourable court to grant him leave to the said 1 st defendant/applicant to appeal against the ruling and order delivered by this Honourable court on 28.04.2026. c) The Honourable court be pleased to grant an order of stay of execution and/or enforcement of the ruling and order delivered and issued by this Honourable court on 28.04.2026 and 11.05.2026 respectively together with all consequential orders arising therefrom and/or attendant thereto pending the hearing and determination of Civil appeal number E131 of 2026. d) The Honourable court be pleased to issue stay of proceedings in respect of the notice of motion dated 12.05.2026 pending the hearing and determination of civil appeal number E131 of 2026. e) Costs of this application do abide the outcome of the appeal. 6. The 2nd Application was premised on the following grounds; a) The Honourable court delivered a ruling on 28.04.2026 where the Honourable court issued various orders against the 1st defendant/applicant herein. P a g e 3 | 14

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b) The said orders issued were irregular owing to the fact that the Honourable court had dismissed an application dated 28.10.2025 which application was seeking for compliance of court orders. c) The said orders issued by the Honourable court were granted without any party moving the court to issue the said orders. The Honourable court decided on its own motion to issue and grant the said orders which were misleading. d) The 1st defendant/applicant stays on LR. NO. TRANSMARA/ NKARARO/158. The said parcel of land is registered in the name of the 1st defendant /applicant. e) The said defendant/applicant is aggrieved by the said orders issued by this Honourable court and therefore the 1st defendant/applicant has since moved to the court of appeal and therefore it is necessary that stay be granted against the orders issued by this Honourable court. f) The plaintiff/respondent has filed an application dated 12.05.2026 where he sought the assistance of security officers for enforcement and/or implementation of the ruling and order delivered and issued by this Honourable court on 28.04.2026 and 11.05.2026 respectively. g) Implementation of the said ruling and order shall greatly prejudice and/or affect the 1st defendant/applicant owing to the fact that the 1st defendant/applicant has since filed an appeal in the court of appeal against the orders issued by this Honourable court. h) The plaintiff/respondent does not stay on the said parcel of land and neither does he farm on the said parcel of land and therefore the plaintiff/respondent shall not suffer any prejudice in the event the orders sought herein are granted. i) The 1st defendant /applicant shall suffer greatly in the event the said orders issued by this Honourable court are implemented. The said P a g e 4 | 14

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1st defendant/applicant depends greatly on the said parcel of land for his livelihood. j) In the event the orders issued by this Honourable court are implemented the 1st defendant/applicant shall suffer substantial loss and therefore it is prudent that the orders issued by this Honourable court are stayed. k) In a nutshell the execution and/or implementation of the order issued by this Honourable court shall be incapable of redemption in the event that the appeal succeeds which is most likely. l) The 1st defendant/applicant is requesting the Honourable court to grant leave to the said 1 st defendant/applicant to file an appeal to the court of appeal against the ruling and order delivered by this Honourable court on 28.04.2026. m) The 1st defendant/applicant is/was dissatisfied with the said ruling and order that was delivered by this Honourable court on 28.04.2026 and therefore the said 1st defendant/applicant is intent on filing an appeal in the court of appeal and it is for that reason the said 1st defendant/applicant is requesting for leave to file an appeal against the said ruling and order. n) When the said ruling was delivered, leave was not sought to file an appeal against the said ruling and order that was issued by the Honourable court. It is therefore prudent that the leave sought herein is granted by this Honourable court. o) The said 1st defendant/applicant is intent on protecting his right and property particularly the suit property herein and therefore the said 1st defendant/applicant requests the Honourable court to grant him leave to file an appeal against the said ruling and order. p) The 1st defendant/applicant is requesting this Honourable court to be gracious and grant the said 1 st defendant/applicant leave to appeal against the ruling and order dated 28.04.2026. P a g e 5 | 14

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q) In any event the instant application has been made without unreasonable delay. r) The plaintiff/respondent shall not suffer any prejudice if the orders sought herein are granted. s) The Honourable court should grant the 1st defendant an opportunity to pursue the appeal in the court of appeal. t) It is in the interest of justice that the application herein be heard and be granted in terms of the orders sought herein. 7. The Application is supported by the Sworn affidavit of Peter Peperu Ntururu, the 1st Defendant/Applicant herein, dated 25.07.2026who reiterates the grounds in support of his Application in his depositions. 8. The Plaintiff/Applicant responded to the Notice of Motion filed by filing a Replying Affidavit dated 30.07.2026 deponing that; (i) The Plaintiff avers that the application before this court is filed in bad faith, misleading, misconceived, out to delay justice, multiplicity, wasting the court's precious time and an abuse of the court process as it breaks the rules of fair play and harms justice. (ii) That the 1st Defendant herein filed an application dated 26.06.2026, seeking for the same prayers as in the instant application to which the Plaintiff filed his replying affidavit sworn on 03.07.2026, opposing stay of the execution of the orders issued on 28.04.2026 and stay of proceedings in the Plaintiff’s application dated 12.05.2026. (iii) The Plaintiff avers that the 1 st Defendant was served with the said application dated 12.05.2026 and he never responded to it, but instead he filed a Notice of Motion under Certificate of urgency seeking for stay of execution of the orders issued by this court on 28.04.2026. (iv) The Plaintiff avers that for fair hearing and justice, this Honourable court directed that the parties herein canvass the three applications by way of written submissions. However, the Plaintiff had already filed P a g e 6 | 14

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his submissions dated 01.07.2026 in regard to his application dated 12.05.2026. Plaintiff’s submissions 9. The Plaintiff submits that; (i) this court directed that he files supplementary submissions due to the 1st Defendant’s application dated 26.06.2026, which consists the contents of the Plaintiff’s said application. The Plaintiff avers that the 1st Defendant herein instead of filing submissions concerning his application dated 26.06.2026, as directed by this court, he opted to withdraw the said application. Hence, the Plaintiff was in dilemma on the directions of the court. (ii) The Plaintiff further submits that the 1st Defendant’s Notice of Withdrawal of the application dated 26.06.2026, has not been admitted by this court as no directions or orders has been issued by this court as to such. (iii) The Plaintiff submits that the 1st Defendant could have waited for this court's directions on his Notice of Withdrawal of the said application before filing the instant application. (iv) Further, the Plaintiff points that the 1st Defendant herein on the 12.05.2026, lodged a Notice of Appeal dated 07.05.2026, before this court in view of filing an appeal before the court of appeal. He caused service of the same upon the Plaintiff’s advocates on record. Additionally, on the 24.06.2026, the 1 st Defendant served the Plaintiff’s advocates with the Memorandum of Appeal filed in COURT OF APPEAL AT KISUMU, CIVIL APPEAL NO. E131 0F 2026, against the ruling delivered on 28.04.2026. (v) Further, the Plaintiff submits that on 27.07.2026, the applicant again served his advocates with the Notice of Withdrawal dated on the 23.07.2026, stating that the Memorandum of Appeal dated on P a g e 7 | 14

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24.06.2026 and the entire Record of Appeal in COURT 0F APPEAL AT KISUMU, CIVIL APPEAL NO. E131 0F 2026, be withdrawn. (vi) The Plaintiff submitted that the 1st Defendant herein is misleading this court by not stating exactly that there is no pending appeal before COURT OF APPEAL AT KISUMU as he has withdrawn the same as demonstrated by his own sins in the Notice of Withdrawal dated 23.07.2026. (vii) The Plaintiff also depones that the 1st Defendant herein is fond of filing application after application which amounts to multiplicity of applications in view of wasting the court's precious time and increasing costs in a very simple litigation which ought to have been concluded a long time ago. Courts in this Republic of Kenya have always stated that, all litigations must come to an end as expressed under Sections 1A and 1B of the Civil Procedure Act and the civil provisions in regard to overriding objectives. (viii) The Plaintiff submits that court orders are not made in vain, hence must be complied with in the first instance and therefore the stay of execution of the orders issued by this court on 28.04.2026, must be obeyed by any person served in compliance with the court's directions. (ix) Further, the Plaintiff notes that it is trite law that no order can be executed without security where there is an order for destruction of crops as the same requires long processes and other incidentals like criminal issues or offences leading to trespass and malicious damage to property or crops. In the circumstances, the application dated 12.05.2026, should not be stayed as the same must proceed without any delay as the same involves perishable crops (sugarcane) which are likely to rot soon. (x) The Plaintiff prays that the instant application is not merited and to be dismissed with costs. P a g e 8 | 14

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1st Defendant’s Written Submissions 10. The 1st Defendant filed written submissions in support of his Notice of Motion dated 06.08.2026 and the submissions are summarized as hereunder; (i) The 1st Defendant submits that the right to Appeal is not automatic nor absolute and must lie under law and where leave is a prerequisite, it must be sought and obtained citing the decision in the Court of Appeal at Nakuru Civil Appeal No. E101 OF 2021 Solomon Boit v Everline Cheroitich Kumin & Others and Mughal and Rashid (Suing as the Legal Representatives of the Estate of the Late Rashid Mughal) v Bhola (Supra). The 1st Defendant submits that his application is to seek leave to appeal the decision of the trial court and the court of appeal shall determine whether the said decision by the trial court was right or not. (ii) The 1st Defendant submits that the decision by the trial court was irregular and unlawful and therefore the Honourable court is requested to grant the 1st Defendant leave to appeal relying in the case at the High Court in Kisii Civil Appeal 215 of 2024 Janet Abisi Simon v Sospeter Nyatuka Oira and Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR. The 1st Defendant by mistake filed Civil Appeal No. E131 of 2026 in the Court of Appeal without leave of this court and withdrew the appeal after the trial judge raised one issue for determination in the Notice of Motion dated 26.06.2026, whether leave to appeal had been sought. (iii) The 1st Defendant submits that the intended appeal to be filed raises substantial legal issues and facts that requires this Honourable court to exercise its discretion to determine the said facts and legal issues and stay the implementation order. The 1st Defendant is likely to lose substantially in the event the said stay of the said order is not granted. The 1st Defendant cited the decision in the Environment and Land Court at the Mombasa ELC Case No. 35 of 2019 P a g e 9 | 14

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Hussein Alo Khaki & 2 Others v Said Juma & Another, Muchiri v Rutere (Environment & Land Case No. 319 & 316 of 2017 (Consolidated)) [2023] KEELC 22377 (KLR) (14.12.2023) (Ruling) and in Butt v Rent Restriction Tribunal (1982) KLR 417. (iv) The 1st Defendant submits that they have attached a Notice of Appeal and a Memorandum of Appeal for this Honourable court to understudy that the intended appeal is arguable and has satisfied the conditions pursuant to Order 42 Rule 6 (2) of the Civil Procedure Rules and in the decision in the High Court at Meru Civil Appeal No. E088 of 2024 Salome Kagwiria Mputhia v Andrew Muriungi M’Miriti. 11. On the strengths of his submissions above, the 1 st Defendant prays that this Court grants the orders prayed in Paragraph 3. 12. The Plaintiff chose to adopt his Replying Affidavit dated 30.07.2026 as Supplementary submissions. Issues for determination. 13. Noting that there are 3 applications coming up for determination as summarized above, the 3rd application by its very nature shall be determined first, then the 2nd application afterwards the 1st application. 14. The issues for determination in respect of each of the three applications are different and are as follows: 15. 16. In respect of the 3rd application the issue for determination is (i) Whether or not leave to appeal can operate retrospectively? (ii) Whether the application is merited? In respect of the 2nd application the issues for determination shall be as follows (i) Whether or not the application is merited and (ii) What reliefs ought to issue. P a g e 10 | 14

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17. While in respect of the 1st application, the issue for determination will be whether or not the application is merited and what reliefs ought to issue and who bears the costs of the application. Analysis and Determination 18. With respect to issue No. 1 of the 3 rd Application as to whether leave to Appeal can operate retrospectively. 19. It is to be noted that the leave to Appeal sought herein is not the leave to Appeal out of time but rather the leave to Appeal as envisaged under section 75 of the Civil Procedure Act. 20. In Salat Vs. Independent Elections and Boundaries Commission and 7 Others (2014) KESC 31 the Supreme Court dealt with leave to file an Appeal out of time, and the said decision by parity of reasoning applies to this case. At paragraph 53-54of the Supreme court Ruling observed interalia “By filing an appeal out of time before seeking extension of time, and subsequently seeking the court to extend time and recognise such an Appeal is tantamount to moving the court to remedy an illegality, this the court cannot do…” 21. The above position was reiterated by the Supreme court in its decision Book Point Ltd Vs. Guardian Bank Ltd and Another (Application 4) E006 of 2021 KESC 73 KLR. 22. What can be distilled from the above decisions is that leave to Appeal only operates from the time it is granted and cannot be granted where an Appeal was already filed, hence cannot operate retrospectively to cure an otherwise a nullity. 23. It follows thus even if the court was to grant leave to Appeal against the Ruling delivered on 28.04.2026, the same cannot act retrospectively, and as such the court is being asked to engage in an academic exercise as this application in so far as it seeks leave to Appeal against the Ruling dated 28.04.2026, which the plaintiff wants to implement. P a g e 11 | 14

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24. Noting that leave once granted cannot act retrospectively, the court nonetheless allows the said application. 25. With regard to the 2nd application seeking stay of execution of the orders issued on 11.05.2026 pursuant to the Ruling dated 28.04.2026, the court finds that there is no valid Appeal before the Court of Appeal since at the time the said Appeal was lodged leave to Appeal had not been granted and hence there is no Appeal within which the stay of execution. Application can be founded on. In arriving at the said finding I am guided by the decision of Book Point Ltd Vs. Guardian Bank Ltd, aforesaid as well as the decision in Issa Shekuwe Shalli Vs. Busscar Limited 2019 KEELRC 1874 where Rika J. observed as follows; “Whereas it is not in the jurisdiction of the trial court to rule on the formal validity of a Notice of Appeal, there is merit in the claimants position that the Notice of Appeal was filed out of time allowed by the Court of Appeal Rules, and was served upon the claimant out of time, it is difficult in the circumstances to agree with the Respondent, that there is a valid Notice of Appeal, and therefore there is an Intended Appeal, capable of prompting the court to go into considering grant of stay of execution.” 26. It follows therefrom that the stay of execution sought in the 2 nd application cannot be granted in view of non-existence of an Appeal before the Court of Appeal. 27. Moreover, in the Ruling dated 28.04.2026 at paragraph 25, the court observed that the 1st Defendant Peter Ntururu who is the Applicant in the 2nd Application had denied planting sugarcane, in his Replying affidavit to the contempt of court application. It is therefore strange that the same Applicant would now seek stay of execution on the grounds interalia that the crops in the suit property are source of his livelihood. 28. The Applicant is engaging in approbation and reprobation, which actins renders his application to lack merit. P a g e 12 | 14

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29. Thus, the 2nd Application having been found to lack merit is herewith dismissed with costs. 30. It is to be noted that the 2nd Application was filed as a Response to the first application; and having dismissed the 2 nd Application, the first application is thus unopposed and the court shall now dwell on its merits. 31. The first Application seeks extension of time from the 14 days issued on 28.04.2026, so as to implement the orders issued herein as well as the Assistance of security from Nkararo police station. 32. The 1st application seeks to execute the court orders granted vide the Ruling dated 28.04.2026. 33. The said orders have not been challenged vide an Appeal as leave had not been sought in any event hitherto, but has been granted today, in absence of there being an Appeal, and in view of the denial of the sugarcane by the 1st defendant, which sugarcane was planted in defiance of valid orders issued by the magistrate court at Kilgoris before transfer to this court, a fact that is well within the knowledge of the 1 st Defendant, the court finds that the 1st application is merited and therefore allows the same in terms that; (i) The plaintiff shall cause the sugarcane planted on the suit property to be destroyed within 60 days from today and a destruction report shall be filed after the said destruction. (ii) The O.C.S Nkararo police station shall offer security during the destruction exercise. (iii) Costs of the three applications are granted to the plaintiff. (iv) Orders accordingly. Dated at Kilgoris this 17th day of September, 2026. Hon. M.N Mwanyale Judge P a g e 13 | 14

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In the presence of CA Sylvia/Clara Mr. Okemwa for Plaintiff Mr. Ochwangi for Defendant P a g e 14 | 14

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