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ELCPartially AllowedNot stated in the judgment extract· [2019] KEELC 447 (KLR)

M’Twiga Bore v Eliphas Kithinji Bore [2019] KEELC 447 (KLR)

High Court of Kenya (on appeal from the trial court in a land matter)
26 November 2019
PNP. M. Njoroge
441 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court paused a land eviction, but only because the losing party agreed to deposit Kshs. 500,000 in court as security within 14 days.

What this practically means

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Executive summary

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This was an interlocutory application by M'Twiga Bore, the applicant and intended appellant, seeking a stay of execution of the judgment of the trial court delivered on 21st August 2019 in civil case no. 139 of 2016, in which he was ordered to give vacant possession of land parcel Mwimbi/N. Mugumango/1964 to the respondent, Eliphas Kithinji Bore, within 90 days, failing which eviction orders would issue. The trial court also issued a permanent injunction restraining the applicant, his family, agents and assigns from interfering with the respondent's land, and ordered the applicant to bear the costs of the suit. The applicant's supporting affidavit asserted that the suit land was hived from the estate of the late Bore Rugie (deceased) and that he had a beneficial interest in it. The application was heard inter partes on 26th November 2019; the respondent opposed it, contending that the applicant, his brother, was merely greedy as he had his own land. The court, per P. M. Njoroge J, granted the stay of execution conditionally: the applicant was to deposit Kshs. 500,000/= with the court as security within 14 days, failing which the stay would automatically lapse. The applicant was further directed to file and serve a record of appeal within 14 days, and the parties were to attend court for directions on 11th December 2019. No costs order was made. The judgment is a brief ex tempore ruling on a stay application rather than a determination of the underlying dispute.

Key legal issues

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Whether to stay execution of the trial court's judgment pending the intended appeal

Holding

Stay granted conditionally on the applicant depositing Kshs. 500,000/= as security within 14 days, with a further direction to file the record of appeal within 14 days

Reasoning

The applicant, aggrieved by the judgment of the trial court in civil case no. 139 of 2016, which ordered him to give vacant possession of land parcel Mwimbi/N. Mugumango/1964 within 90 days, issued a permanent injunction against him, and costs against him, sought stay pending appeal. The respondent opposed, alleging the applicant was greedy and had his own land. The court balanced the parties' positions by granting stay conditional on security and timely filing of the appeal record, with a directions date set.

p. 2

Legal principles established

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  • A stay of execution pending appeal may be granted conditionally upon the applicant depositing security in court, failing which the stay lapses automatically

Court orders

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  1. 1.Prayer 2 of the application granted on condition that the applicant/intended appellant deposits with the court as security the sum of Kshs. 500,000/- within 14 days, failing which the conditional stay will automatically lapse
  2. 2.The applicant/intended appellant to file and serve a record of appeal within 14 days
  3. 3.Parties to come to court for directions on 11th December, 2019
On appeal from
Trial court (lower court) - civil case no. 139 of 2016
Civil Case No. 139 of 2016
Jurisdiction invoked
Appellate/interlocutory jurisdiction to stay execution of the lower court's judgment pending appeal (statutory basis not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "M’Twiga Bore v Eliphas Kithinji Bore [2019] KEELC 447 (KLR)", Case Analysis (2019). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/447/eng@2019-11-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.