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PATRICIA LOIS MUCHIRI,JULIA WACERA MAGONDU,MARGARET WANGUI MWAURA,LYDIA GATHONI WAMBUGU,DAVID KAMAU WAMATHU & DAVID KARIUKI WABANDE V. BOARD OF MANAGEMENT BURUBURU GIRLS SEC ONDARY SCHOOL,NAIROBI CITY COUNCIL,NATIONAL LAND COMMISSION,ATTORNEY GENERAL,DIRECTOR OF SURVEYS & METROPOLITAN HEALTH SERVICES LTD

(2020) JELR 94112 (CA)

Court of Appeal  •  Civil Application 87 of 2020  •  24 Apr 2020  •  Kenya

Coram
Fatuma sichale, Patrick Omwenga Kiage, Stephen Gatembu Kairu

Judgement

RULING OF THE COURT

By the motion dated 15th March 2020, the six applicants, who are owners of various homes within a residential area in Nairobi’s BuruBuru Estate more particularly known as Metro Villas Estate, seek various orders on their own behalf and on behalf of all residents of the said Metro Villas Estate. The main target of their application is the Board of Management of BuruBuru Girls Secondary School, the 1st respondent. They accuse it of having erected a wall, gate and barrier across the entrance to the 34 affected homes via Rabai Road.

Among the orders sought are orders compelling the respondents to remove the said wall, gate, barrier or any obstacle so erected; or to permit the applicants to remove the same at the respondents’ cost; and an injunction restraining the respondents from erecting any such wall, gate or barrier that would interfere with the applicants' access to their homes from Rabai Road.

In view of the extra-ordinary circumstances brought about by the Covid-19 Pandemic, we did not hear the application by way of ordinary courts sitting, confining ourselves to the papers filed by the applicants. The respondents were served but had filed nothing in response by the time the motion came for our consideration on the date it was listed for hearing.

We have considered the said application, the grounds on which it is based and the supporting affidavit of David Kamau Wamathu sworn on 15th March 2020. We have perused the draft memorandum of appeal annexed to the said affidavit and are readily satisfied that the applicants intended appeal is an arguable one.

In order to succeed on application for stay of execution or injunction pending appeal, however, the applicant must in addition demonstrate that the intended appeal would be rendered nugatory unless the interim relief sought is granted. All the applicable principles and the considerations that go into a determination of such application were aptly summarized by this Court in STANLEY KANGETHE KINYANJUI v. TONY KETTER and 5 OTHERS [2013] eKLR.

On the applicant’s own showing, that which they seek is the demolition or removal of a wall or barrier that is already in place. The propriety of that wall or barrier is inextricably linked to the ownership of the disputed land, which will be for determination in the intended appeal. Before a such determination is made, it would be unwise to grant the drastic orders of demolition that the applicants seek. The nugatory argument thus stands negated by the fact that there is a fait accompli that ought to be reversed only upon a merit determining of the intended appeal. The application for injunction pending appeal accordingly fails.

As the complaints of inconvenience and hardship made by the applicants are serious and not idle, and so as to ensure that there is finality to the matters in dispute, we direct that the applicants’ appeal, once filed, be fast-tracked for expedited hearing and disposal.

The costs of the motion shall be in the intended appeal.

Dated and delivered at Nairobi this 24th day of April, 2020.

P.O. KIAGE

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JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

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JUDGE OF APPEAL

F. SICHALE

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JUDGE OF APPEAL

I certify that this is a true copy of the original

Signed

DEPUTY REGISTRAR

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