Michael Waweru & another v Grace Nyokabi Kinuthia [2019] KEELC 2862 (KLR)
The bottom line
#A Kenyan court allowed an 80-year-old appellant to use a relative's land title as court security, but only with signed transfer documents protecting the winners.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for review were met
No new and important matter or error apparent on the face of the record was cited; the application was assumed to rest on 'other sufficient reason', namely the applicant's advanced age and inability to raise the security sum.
The court set out the statutory grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1. The applicant relied on her being over 80 years old and unable to raise KShs 1,200,000, offering a third party's title as alternative security. Though no express statutory ground was pleaded, the court assumed 'other sufficient reason' and balanced the applicant's right to pursue her appeal against the plaintiffs' rights as successful litigants.
Suitability of the alternative security offered
A third party's title was, on its own, unsuitable because the applicant did not own the property and no executed transfer was exhibited, creating risk of fresh litigation; but review was granted on modified terms requiring deposit of the title, green card and attested transfer forms.
The court noted the property belonged to Charles Waruiru Karanja, not the applicant, and that realisation of such security could spawn new litigation with a new party. Although Karanja deponed that he had signed transfer documents, no signed transfer was exhibited. The court therefore fashioned conditions - deposit of the original title, certified green card and executed, attested transfer forms in favour of the plaintiffs - to protect the plaintiffs' interests pending appeal.
Legal principles established
#- Review under Section 80 and Order 45 Rule 1 requires discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and a court may grant review on such terms as it thinks fit.
- Security for stay of execution offered by a non-party may be acceptable if conditioned on deposit of the title, green card and executed transfer forms, so as to protect the successful litigant from fresh litigation.
Court orders
#- 1.The stay granted on 20th July 2018 is conditional on the defendant depositing security of KShs 1,200,000 in court within 21 days from the date of delivery of the ruling
- 2.In the alternative, the defendant to deposit in court within 21 days the original title deed in respect of Title Number Ndarugu/Karatu/3387, a certified copy of the green card in respect of the parcel and transfer forms in respect of the parcel executed in favour of the plaintiffs and duly attested
- 3.In default, the stay orders shall automatically lapse and Notice of Motion dated 24th January 2018 shall stand allowed with costs to the plaintiffs
- 4.Costs of Notice of Motion dated 8th August 2018 to the plaintiffs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Waweru & another v Grace Nyokabi Kinuthia [2019] KEELC 2862 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2862/eng@2019-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.