Catherine Njeri v Rose Wangari Ndung’u & another [2020] eKLR Case Summary

Court
Court of Appeal at Nairobi
Category
Civil
Judge(s)
Ouko (P), Asike-Makhandia, Sichale, JJ.A
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

1. Case Information:
- Name of the Case: Catherine Njeri v Rose Wangari Ndung’u (Suing on their own behalf and for their own benefit and on behalf of and for the benefit of the Estate of the late Stanley Ndung’u Njoroge) & another [2020] eKLR

- Case Number: Civil Application No. E237 of 2020
- Court: Court of Appeal at Nairobi
- Date Delivered: 23rd October 2020
- Category of Law: Civil
- Judge(s): Ouko (P), Asike-Makhandia, Sichale, JJ.A
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court include:
1. Whether the applicant's appeal against the mandatory injunction requiring her to vacate the suit property is arguable.
2. Whether the execution of the lower court's order should be stayed pending the determination of the intended appeal.

3. Facts of the Case:
The applicant, Catherine Njeri, and the respondents, Rose Wangari Ndung’u and Steluc Limited, are involved in a dispute concerning land parcel No. DAGORETI/RIRUTA/6213. The Environment and Land Court, under the direction of Justice Gacheru, initially issued a temporary injunction on 23rd May 2017, restraining the applicant from dealing with the property. Subsequently, on 26th October 2017, the court permitted the 2nd respondent to use the property, but the applicant refused to vacate, claiming ownership and continuing to develop the land. This led to the 2nd respondent filing an application on 21st March 2019, resulting in a mandatory injunction compelling the applicant to vacate the property within 45 days. The applicant sought a stay of execution of this order, asserting that the property is her matrimonial home where she has lived for over 30 years.

4. Procedural History:
The case progressed through the Environment and Land Court, where initial injunctions were issued against the applicant. Following her non-compliance with the court's orders, the 2nd respondent successfully obtained a mandatory injunction requiring her to vacate the property. The applicant subsequently filed an application for a stay of execution and an injunction in the Court of Appeal, which is the subject of this ruling.

5. Analysis:
- Rules: The court considered the application under Rule 5(2)(b) of the Court of Appeal Rules, which allows for the granting of injunctions and stays of execution pending appeal. The court emphasized that its jurisdiction is discretionary and guided by two principles: the arguability of the appeal and whether the appeal would be rendered nugatory if the stay is not granted.

- Case Law: The court referenced previous cases, including *Regnoil Kenya Limited v. Winfred Njeri Karanja* [2019] eKLR and *Pauline Yebei & Another v. Estate of Kiprotich Arap Letting* [2017] eKLR, which established the principles for granting stays and injunctions in civil matters. These cases underscore the importance of demonstrating a serious issue for consideration and the potential for irreparable harm if the stay is not granted.

- Application: The court found that the applicant's appeal raised significant issues regarding the lawful ownership of the property, the principles governing mandatory injunctions, and allegations of fraud. The court acknowledged the applicant's long-term occupation of the property, validating her apprehension of eviction as justified. Consequently, the court determined that the appeal was arguable and that failing to grant the stay would render the appeal nugatory.

6. Conclusion:
The Court of Appeal granted the applicant's application for a stay of execution pending the hearing and determination of her appeal. The court ordered that the orders of 16th July 2020 and any further proceedings in the lower court be stayed. The applicant was directed to lodge and serve the record of appeal within 30 days, with costs to be determined in the appeal.

7. Dissent:
There are no dissenting opinions noted in the ruling.

8. Summary:
The Court of Appeal ruled in favor of the applicant, Catherine Njeri, granting her a stay of execution against the lower court's order requiring her to vacate her matrimonial home. This decision highlights the court's recognition of the importance of protecting individuals from eviction without due process, especially when significant issues regarding property ownership and rights are at stake. The ruling emphasizes the court's discretion in civil matters and the necessity of balancing the rights of both parties involved.

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