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Men, this is the correct age to move out of your parents house. Things that makes your partner give you all the love you crave for. Civil Case No. THAT if effect is given to the judgment aforesaid before the appeal can be heard the current applicant will suffer substantial loss.
The applicant procured a valuation of the suit premises as at 9 th November, which gave a valuation at Kshs. THAT it is therefore evident that the applicant stands to lose a commercial property of considerable value if execution is not stayed pending appeal and which appeal would be rendered nugatory if the applicant were to be successful in the appeal.
THAT this application has been made expeditiously and without any undue delay. THAT the applicant stands ready and willing to furnish such security for the due performance of any order as the Court may deem fit to grant and I verily believe that the respondent will not be unduly prejudiced if the order for stay is made.
THAT the matters deponed to herein are within my own knowledge save where based on information and belief the sources and grounds whereof have been stated. In order to appreciate what is before us, it may be necessary to give a brief background that has led to the present application. An order of certiorari to remove into this court and quash the decision of the Commissioner of Lands;.
An order of mandamus to compel the Commissioner of Lands to issue a certificate of title in respect of the suit land in favour of the applicant;. The application was placed before Wendoh, J. From her judgment, it would appear that the matter had a long history going back to pre-independence days. The learned Judge made the following findings On 17 th January, , Kenya Shell Ltd.
The lease was to run from 1 st July, and subject to conditions in the grant. On 29 th March, , Kenya Shell Ltd. The sub lessees were granted an option to renew the sub-lease on condition inter alia, that it would be extended for a similar term subject to payment of K. It was a term of the lease that they would not transfer or sublet without the consent of Kenya Shell Ltd. On 12 th May, , Kenya Shell Ltd. Njenga Karume and the lease was registered on 24 th July, on the same terms as previous sub-lessees.
Karume then transferred it to Karume Investments Ltd. In Kenya Shell Ltd. On 19 th January, , Kenya Shell Ltd. By another letter dated 19 th March, , the Commissioner of Lands charged new land rent payable, which Kenya Shell Ltd. After that the Commissioner of Lands File No. Before the new grant and surrender of lease were signed it was noted that the lease to Karume Investments Ltd. When Karume Investments Ltd. In June, the Commissioner of Lands asked Kenya Shell Ltd to confirm if the developments on the land were theirs, and the Commissioner gave that as the reason for the delay in extending the lease.
In July, , Kenya Shell Ltd. Kenya Shell Ltd. It later transpired that the whole land the portion with the petrol station and the portion with flats would be allocated or allotted to Karume Investment s Ltd. That is the matter that was placed before the superior court by way of judicial review application.
The learned Judge considered the rival submissions and in her judgment, the learned Judge found in favour of Kenya Shell Ltd. In concluding her judgment, the learned Judge stated Costs to be borne by the respondent and Interested Party. Being aggrieved by the foregoing, the applicant herein filed a Notice of Appeal on 5 th August, A draft Memorandum of Appeal was also included in the record of this application which was filed pursuant to the said Notice of Appeal.
But before that appeal is heard and determined, the applicant seeks a stay of the order of the superior court made on 30 th July, This is the application that came up for hearing before us on 26 th November, when Mr. Shah a retired Judge of Appeal appeared together with Mr. Kimani, for the applicant. Kiragu Kimani , and Miss T. Mwango appeared for the 1 st respondent, while Mr. Antony Ombwayo appeared for the 2 nd respondent.
In his submissions, Mr. Shah gave a general background to the dispute and went on to demonstrate that his client had an arguable appeal. For example, he submitted that the development flats on the plot were bought by the applicant and hence these developments never belonged to Kenya Shell Ltd. Shah further contended that a lease was a contract and for that reason what had been going on between Kenya Government and Kenya Shell Ltd were negotiations.
He went on to argue that the lease having expired, the land in dispute reverted to the Government. Another point that Mr. Shah submitted would be subject of appeal, was whether mandamus can establish a legal right. In his view mandamus can only enforce existing rights. On the nugatory aspect of the intended appeal, Mr.
Shah told us that the property in dispute was worth Shs. On his part, Mr. Ombwayo made very brief submissions. He submitted that it would be arguable whether the superior court could issue an order of certiorari in the circumstances of this case since in his view certiorari can only be issued where the body giving the orders had no jurisdiction. Ombwayo argued that the issue was whether the correct procedure was followed.
Antony Ombwayo appeared for the 2 nd respondent. In his submissions, Mr. Shah gave a general background to the dispute and went on to demonstrate that his client had an arguable appeal. For example, he submitted that the development flats on the plot were bought by the applicant and hence these developments never belonged to Kenya Shell Ltd. Shah further contended that a lease was a contract and for that reason what had been going on between Kenya Government and Kenya Shell Ltd were negotiations.
He went on to argue that the lease having expired, the land in dispute reverted to the Government. Another point that Mr. Shah submitted would be subject of appeal, was whether mandamus can establish a legal right. In his view mandamus can only enforce existing rights.
On the nugatory aspect of the intended appeal, Mr. Shah told us that the property in dispute was worth Shs. On his part, Mr. Ombwayo made very brief submissions. He submitted that it would be arguable whether the superior court could issue an order of certiorari in the circumstances of this case since in his view certiorari can only be issued where the body giving the orders had no jurisdiction. Ombwayo argued that the issue was whether the correct procedure was followed.
Secondly, so argued Mr. Ombwayo, the issue was whether mandamus was properly issued. He submitted that an order of mandamus can only be issued to compel a body to perform a public duty, and that public duty must be derived from a statute. He submitted that no public duty was cited. In conclusion, Mr. Ombwayo agreed with the submissions of Mr. Shah that the orders of the superior court could not be issued.
Kimani who relied on the replying affidavit filed by the first respondent, started by stating that what the court was being asked to grant was a discretionary remedy and for that reason the court had to take into account special circumstances of each case. He went on to give the history of the dispute informing us that there were tenants in the suit premises and hence the interest of the tenants must be taken into account.
Kimani further submitted that the order of the superior court was not capable of being stayed. To buttress his argument, Mr. It was Mr. He further contended that an omnibus prayer as prayed for in this application should not be granted since there are no any other proceedings pending in the superior court.
Kimani went into detailed arguments which, in our view, may not be necessary at this stage since our jurisdiction in this application is rather limited. We cannot go into the merits of the intended appeal. Our jurisdiction is restricted to determining whether the intended appeal is arguable and secondly, whether our refusal to grant the relief sought would render the intended appeal nugatory in the event that the applicant was successful in the said intended appeal.
Counsel appearing appreciated this fact and they correctly addressed us on these principles. It is now settled that an applicant seeking orders under that rule has to satisfy the court, first, that his appeal or intended appeal, as the case may be is arguable, that is to say the appeal or intended appeal is not frivolous. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in WILSON V.
In the same case, Cotton LJ said at p. In our view, Mr. As we have already stated we have rather limited jurisdiction at this stage since we must avoid making any firm findings on various issues that may be raised in the intended appeal.
Ombwayo referred us to the two orders of certiorari and mandamus issued by the superior court. We feel it is arguable whether the superior court had the power to issue those orders. On the nugatory aspect, we were told that the property was worth S hs. In view of the history of this matter, it would appear that the property could easily be sold to a third party hence complicating matters in the event that the applicant is successful in its intended appeal.
In law, one single arguable point is sufficient and that coupled with special circumstances of this case e. First they intend to show in their proposed appeal that even if it be true that the son of Mr. Justice Bosire is an employee of the Central Bank, or that Mr. Gatonye has previously acted for that bank, those are not such terribly important factors as to warrant the crippling of the operations of the Commission by an order of stay as Mbito, J did. The respondent on the other hand and relying on the decision of R.
We think this, even if it were the only point, is an arguable one and the length of time counsel spent before us was itself sufficient proof that the point is worth investigating on appeal and is not a frivolous one. There may or may not be other arguable points but as we have said before even one arguable point is sufficient for the purposes of rule 5 2 ; there need not be a chain of arguable points to sustain an application.
Applying the foregoing to the facts of the present application, we are of the view that taking into account the history of this matter it cannot be said that the intended appeal is frivolous. The intended appeal, indeed, raises substantial issues which are worth investigating on appeal. We are therefore satisfied that this application should be granted. Costs of this application shall abide the outcome of the intended appeal.
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