Malcom Bell v Daniel Toroitich Arap Moi & another [2006] eKLR

REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAKURU

Civ Appli 342 of 2005

MALCOM BELL………………………..............……………………. APPLICANT

AND

HON. DANIEL TOROITICH ARAP MOI ……………....…. 1ST RESPONDENT

THE BOARD OF GOVERNORS,

MOI HIGH SCHOOL, KABARAK ...................................… 2ND RESPONDENT

(An application for stay of execution of the judgment and decree of the High Court of
Kenya at Nakuru (Muga Apondi J.) dated 31st October, 2005

in

H.C.C.C. NO.14 OF 2004)

****************

RULING OF THE COURT

This is an application under rule 5(2)(b) of the Court of Appeal Rules (the Rules),
brought by the unsuccessful party in Nakuru High Court Civil Case No. 14 of 2004,
Malcom Bell (the applicant). The suit related to two consolidated suits, one by the applicant
against Hon. Daniel Toroitich Arap Moi (the 1st respondent) and The Board of Governors of
Moi High School, Kabarak (2nd respondent), for possession of a piece of land measuring
about 110 acres, mesne profits and costs. The other suit was by the 2nd respondent against the
applicant for an order that that piece of land be declared to have been acquired by the school
by adverse possession, and for an order that the applicant execute all necessary documents for

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 Malcom Bell v Daniel Toroitich Arap Moi & another [2006] eKLR

the land to be transferred to the school failing which the Deputy Registrar of the High Court
execute the same.

The two suits were consolidated with the consent of the parties. On 31st October, 2005 the
superior court (Muga Apondi J.) dismissed with costs the applicant’s suit and decreed that the
2nd respondent had acquired title to the disputed land by adverse possession, ordered the
applicant to execute all necessary transfer documents to effect the transfer, in default the
Deputy Registrar of the court to do so. The disputed land is part of L.R. 6207/02 registered in
the name of the applicant.

The applicant was aggrieved by the decision of the superior court and timeously filed a
notice of appeal on 1st November, 2005 declaring his intention of appealing against that
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decision, and on 22nd December, 2005 brought this application.

The jurisdiction of the court under rule 5(2)(b), above, is not only original, but it is also
discretionary; and as such it must be exercised on the basis of sound legal principles. Two
main principles guide the court in its exercise of that discretion, namely, for the applicant to
succeed he must not only show he has an arguable appeal or that his appeal or intended appeal
is not frivolous, but also that unless granted an injunction, stay of decree or of further
proceedings, as the case may be, his appeal or intended appeal, if successful, will be rendered
nugatory. Several authorities on this were cited to us, among them, National Irrigation
Board v. Mwea Rice Growers Multi-Purpose Co-operative Society & Another, Civil
Application No. NAI.153 of 2001 (83/01 UR); Municipal Council of Kisumu v. Nella
Bhanubhai Patel T/A Chemhard Agencies Civil Application No. NAI 29 of 2001 (16/2001
UR) and The Standard Limited v. G.N. Kagia T/A Kagia & Co. Advocates Civil
Application No. NAI 193 of 2003. We have read them all and we agree that they set out the
correct principles to be applied.

The background facts to this matter are brief. The applicant inherited the suit property
from his father, the late Walter Bell. The land abuts Moi High School, Kabarak, which
according to the applicant, is a private school owned by the 1st respondent. In his amended
plaint filed in the superior court on 18th November, 2004 the applicant avers that in or about
1981 the 1st respondent through his agents who were the administrators of Moi High School,
Kabarak, encroached into and by threats and force carved out 110 acres of his land, fenced it

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off and blocked a road which was passing through it, then being used by Walter Bell,
demolished some house structures and a cattle dip which were thereon and excluded him from
using the land. The applicant further averred that because the 1st respondent was then the
President of the Republic of Kenya and by virtue of the Constitutional Provisions, no civil
action could be brought against him while in office and hence the delay in bringing civil
action against him. His prayer is substantially for possession of the land and mesne profits at
the rate of Kshs.4,000 per acre per year.

The 2nd respondent’s suit was brought by way of originating summons under Order
XXXVI rule 3D of Civil Procedure Rules, sections 3(1); 37 and 38 of the Limitation of
Actions Act Cap 22 Laws of Kenya, among other provisions. In the affidavit leading the
summons, Henry K. Kiplagat, the Principal of the School, depones, inter alia, that the school
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was initially started as a Harambee school but was, in 1983 confirmed as a Harambee assisted
school to be managed by a Board of Governors. The school was later still given full
registration status as a public school and stands on land which was donated by the 1st
respondent. The suit land, he says, was donated to the school by Walter Bell, the applicant’s
father. The school, in appreciation thereof, constructed a cattle dip for him, supplied
electricity and attempted though unsuccessfully, to drill a borehole for the late Walter Bell.
The school also undertook other various developmental activities on his land. All these are
disputed by the applicant who contends that electricity was supplied under the Rural
Electrification Programme and that the school came into existence as an entity only in 1992,
when, in his view, the limitation period could start to run in favour of the school. There are
other arguments but we do not consider it necessary to outline them here, this not being the
appeal.

Muga Apondi J. received evidence on the consolidated suits. The school called some of
the applicant’s neighbours who testified regarding Walter Bell’s donation of the suit land.
They also called a lady by the name Mrs. June Elizabeth Dykes, who for sometime
cohabited with the late Walter Bell, until his death. She testified that the late Bell, indeed
donated the land to the school, and in return the school agreed to assist him have mains
electricity connected to his farm, a borehole be sunk on his land and a new cattle dip built on
the remainder of the land.

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 Malcom Bell v Daniel Toroitich Arap Moi & another [2006] eKLR

The trial Judge’s decision was mainly based on credibility of witnesses. Before us,
however, it was urged on behalf of the applicant by his counsel Mr. Waitindi, inter alia, that
the 2nd respondent did not have the capacity to sustain a claim over the suit land by adverse
possession as the school is private and by virtue of section 10 of the Education Act was not
entitled to have a Board of Governors, and that the learned trial Judge did not consider
permissive occupation of the land by the school, which had he done he would have found that
time could not and did not start running against the applicant; that the learned Judge failed to
appreciate that because of the immunity against suits which the 1st respondent enjoyed under
section 14 of the Constitution, he could not be sued.

In answer Mr. Kiplenge for 1st respondent submitted before us that the school was not an
agent of the 1st respondent, as it had previously sued and been sued as an entity, and besides,
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the applicant himself brought action against it, in effect acknowledging that the school had the
legal capacity of suing and being sued. Mr. Sunkuli for the 2nd respondent adopted the same
submission on the issue.

It is quite clear from the facts and circumstances of this case that neither the applicant nor
the 2nd respondent is comfortable with the situation as it is on the ground. The applicant is
apprehensive that unless he is granted a stay there is the danger that the 2nd respondent may
execute decree in its favour and thus deprive him of land which he claims rightly belongs to
him. He fears that in the event the property may be disposed of thereafter to third parties and
he will thereby lose it permanently. Likewise the 2nd respondent fears that since the applicant
is the registered owner of the disputed land, there is nothing to stop him from alienating it and
thus permanently deprive it of the same, with the result that it will be left with a bare decree.
In either case the suit land needs to be preserved.

Several legal issues have been raised by the applicant which clearly show the applicant has an
arguable appeal, the most important of which is whether the 2nd respondent’s possession of
the suit land was permissive or hostile to the interests of the applicant or his father before
him. If possession was permissive, then time would not possibly run against the applicant. If
otherwise, however, then, subject to the finding whether or not the late Bell had donated to or
given his land to the 2nd respondent in consideration of services rendered, the decision of the
superior court cannot be properly challenged.

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 Malcom Bell v Daniel Toroitich Arap Moi & another [2006] eKLR

In the foregoing circumstances, the interest of justice demands that an order issue which
we hereby make, not only granting a stay of execution of the decree of the superior court
dated 31st October, 2005 but also to the effect that the applicant should neither dispose of,
charge, or in any way deal with the suit property until his intended appeal against the decree
of the superior court dated 31st October, 2005, is determined. In the meantime as the 2nd
respondent has been in possession of the subject parcel of land for well over 20 years, we
order that it continues in its possession of it pending the outcome of the intended appeal. The
costs of this application shall be costs in the appeal.

Dated and delivered at Nakuru this 10th day of November 2006.

P.K. TUNOI
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…………………….

JUDGE OF APPEAL

S.E.O. BOSIRE

…………………….

JUDGE OF APPEAL

E.O. O’KUBASU

……………………………

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR