Wainaina v Karuingi & another (Environment and Land Case Civil Suit 77 of 2020) [2025] KEMC 106 (KLR) (22 May 2025) (Ruling)

Wainaina v Karuingi & another (Environment and Land Case Civil Suit 77 of 2020) [2025] KEMC 106 (KLR) (22 May 2025) (Ruling) Neutral citation: [2025] KEMC 106 (KLR) Republic of Kenya In the Nakuru Law Courts Environment and Land Case Civil Suit 77 of 2020 PA Ndege, SPM May 22, 2025 Between Paul Kuria Wainaina Plaintiff and Muturi Karuingi 1st Defendant Esther Wahu Kibe 2nd Defendant Ruling 1.Before me is an application dated 2.04.24 whereupon the defendants pursuant to Section 3A of the [Civil Procedure Act](/akn/ke/act/1924/3), and Orders 42 rule 6, 50 rule 6 and 51 rule 1 of the [Civil Procedure Rules, 2010](/akn/ke/act/ln/2010/151/eng@2022-12-31) have moved this Honorable Court seeking the following substantive orders:a.That pending the hearing and determination of the intended appeal against the respondents herein this court be pleased to stay execution of proceedings in _Nakuru CMELC 77 of 2020_ as directed by the trial court and the Hon P. Ndege (myself) on 19.03.24b.That the draft memorandum of appeal annexed hereto be deemed as duly filed and served save for payment of filing fees. 2.The application is said to be supported by a sworn affidavit of Karungu Peninah, which was however not annexed and is therefore presumed to be non-existent. This therefore means that from the outset, the application is unsupported and hence, incompetent. 3.The respondent nevertheless swore a replying affidavit replying to an affidavit of one Muturi Karuingi, which was attached to the Notice of Motion, despite the application itself appearing not to recognize it. As parties are bound by their pleadings, this court shall treat the said affidavit as irrelevant to this application. 4.Despite the above anomaly, I have still endeavored to understand what the applicants really want herein from the unsupported grounds on the face of the application and the rival submissions filed herein. I can thus authoritatively comment on the application herein. 5.The applicants seeks stay of execution of orders and pre-trial directions issued by myself on the 19th March 2024 (should be orders of 22/02/2023) regarding the trial of the suit herein that had been scheduled for 18th June 2024. They state in their submissions that on the knowledge and assumption that a statement of defence had been filed on 9.08.20, the defendants’ advocate on record proceeded to file an amended defence and counter claim on 29.08.22, before close of pleading and served the same upon the plaintiff’s advocate on 2.09.22, which they received under protest. Further, that their advocate did file their further list of documents on 20.09.22, and they are therefore perturbed at the lengths to which the plaintiff’s advocate on record went to disprove, denounce, mislead and misrepresent to the court on the lack of a duly filed and served amended statement of defence and counterclaim filed and served on 2.09.22. That additionally, on 21.09.22 the court gave directions that the plaintiff files a response to the amended defence and counter claim before the court can issue a hearing date, as directed Hon C. Ndegwa. That the applicant further requested for judgment filed on his counter claim on 29th September 2022 via e-filling and duly filed and stamped in court on 30th September 2022 and that the suit herein has been transferred between 5 courts since filing. 6.They contend that granting or denying stay of proceedings is discretionary and that the court has powers to stay proceedings pending appeal. They aver that the purpose of stay of execution of proceedings pending appeal is to preserve the status quo while balancing the interests of the parties and that the subject matter of the suit being land is highly contentious and if not protected could result in substantial loss for the applicants. 7.They present that the application is filed without undue delay as it was brought before court on 2nd April 2024 with the post directions issued on 19th march 2024 and that the memorandum of appeal attached to the instant application shows that the grounds raised therein are triable. 8.The respondent objected to the grant of stay of execution of proceedings pending appeal as requested by the applicants. It is his position that the applicants herein replied to an application by them on the 13.05.2020. That, additionally, any request by the respondent’s advocate to be supplied with the filed copy of defence bore no fruits as the court on 01.12.2022 did in fact peruse the court file and found no such defence. Additionally, the leave granted to the applicants to comply lapsed with no compliance on their part and that since the applicants never sought for extension of leave the matter came up for further directions on 22.02.23 and fresh directions were thus issued. It is also his position that there are no plausible reasons for delaying the proceedings and that continued delay would lead to miscarriage of justice. 9.The respondent is of the view that he will continue to suffer substantial loss due to trespass by the applicants which is actionable in law. Additionally, he submits that he will suffer both substantial loss and irreparable injury that cannot be cured by damages. 10.Stay of proceedings is provided under Order 42 Rule 6 of the [Civil Procedure Rules 2010](/akn/ke/act/ln/2010/151/eng@2022-12-31) as follows;(1)No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 11.The applicants herein state that they are likely to suffer irreparable loss if the ownership of the suit property is not determined on merit. They state that they sent a statement of defence to the court for filing at the initiation of e-filing in 2020 and later filed an amended defence and counter claim dated 29th August 2022 and served on 2nd September 2022. The respondent herein state that any request to get a copy of the filed defence didn’t bear fruit and also the court vide a ruling on 22.02.2023 did confirm that there was no defence on record. Additionally, the court struck out the amended defence and counter claim since the purported amendment was duly irregular thus the matter would proceed for hearing ex parte without the applicants herein for having failed to file a defence in the first place. The provisions of Order 10 of the [Civil Procedure Rules](/akn/ke/act/ln/2010/151/eng@2022-12-31) are clear and need no further explanation or interpretation on what happens when a defendant fails to file a defence or having filed, fail to serve the same. 12.The right of a defendant to defend a suit is not absolute. The law even allows a defendant to enter an admission and opt not to defend a suit. A defendant who was served way back in 2020, in a land matter, cannot come and claim several years down the line that he sent a defence in an email without sufficient proof as to whether the same was filed or not. A filed document must be stamped and paid for unless the same is filed by a pauper; and there is therefore no indication or evidence to prove that a defence was filed herein. There is further no evidence to prove that a filed defence was served on the plaintiff. One cannot amend a pleading which was not filed. And we cannot allow a defendant to put a suit that does not belong to him on hold, having failed to take up his opportunity to present his defence. 13.This suit belongs to the plaintiff. He filed it approximately 5 years ago. It is a claim with regards to use of, and occupation of land. This suit ought to be heard and disposed of expeditiously and it is the function of this court and all the parties herein, including their counsel who are designated as officers of the court, to facilitate that expeditious disposal. 14.In light of the above, I am convinced that the applicants have not met the threshold for any substantial loss they would suffer, and in the contrary, I find that they appear hell bent on derailing the just, expeditious and fair hearing of this suit. which is contrary to the overriding objectives of the civil procedure as provided for in sections 1A and 1B of the [Civil Procedure Act.](/akn/ke/act/1924/3) I further not that the applicants herein have not come to court with clean hands since they are blantant violators of court orders, rules of practice and directions, yet they seek the same orders this cannot be allowed to stand thus I decline to grant them the sought stay. 15.Otherwise, the application herein has already been found to appea incompetent. Firstly, it is not supported by the affidavit it referred us to. Secondly, some of the orders sought have been filed in a wrong forum. This court cannot sit on an appeal on its own orders and cannot therefore admit a memorandum of appeal filed against its decision. Above all, this court is not an appellate court. Finally, it is now almost 2 years since the directions being attacked herein were made. The Applicants have not demonstrated what steps they have taken to contribute towards the speedier disposal of this matter, as the application herein states that they are still merely intending to appeal. 16.For the above reasons, and having found that the right to be heard applies to both sides to the dispute, is not absolute and can be waived if the party demonstrates by conducts of omission or commission that he does not want to subject himself to the rules and procedures governing a fair trial, the application is hereby dismissed with costs to the plaintiff. Hearing of the suit shall proceed without any undue delay and as per my pre-trial directions issued on 22/03/2023.It is hereby ordered **DATED, SIGNED AND DELIVERED AT NAKURU THIS…22 nd DAY OF MAY, 2025****HON P.A NDEGE****SENIOR PRINCIPAL MAGISTRATE** In the presence of: -Kairu Maina………………………… for the PlaintiffOseko h/b Karungu……………for the DefendantsJanet……………………………Court AssistantK. Maina: We take a hearing dateOseko: We pray for a copy of the ruling.CT: Hearing on 19/06/25 as my pre-trial directions on 22/03/23. Certified copy of the ruling to be supplied to the parties upon payment of any requisite fee.