Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 11th June 2019 (appeal from Nkubu PM ELC Case No. 39 of 2017)· [2019] KEELC 3019 (KLR)

Peter Kaimbi v Gedion M’ithima & 2 others [2019] KEELC 3019 (KLR)

Environment and Land Court (High Court) at Chuka
13 June 2019
PNP. M. Njoroge
1,108 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court paused a land title cancellation, but only after the appellant paid Kshs. 300,000 as security — no security, no stay.

What this practically means

#

Executive summary

#
By notice of motion dated 11th June 2019 brought under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, Peter Kiambi Manyara, the appellant and 2nd defendant in Nkubu PM ELC Case No. 39 of 2017, sought a temporary stay and a stay of execution of the judgment and decree of the Nkubu magistrate's court delivered on 15th May 2019, which cancelled his title to parcel Nkuene/L-Mikumbune/1760 and directed its registration in the name of the 1st plaintiff with immediate effect. He argued that the appeal had high chances of success, that the substratum of the appeal would be lost if the title was cancelled, that he was ready to provide security, and that the application was made without undue delay. The application was urged exparte by Mr. Edwin Kimathi, who asked for prayer 2 on the basis that the substratum of the suit risked being lost. P. M. Njoroge J declined to certify the matter urgent but directed it be heard on priority. Prayer 2 was granted – a temporary stay of execution pending inter partes hearing – conditional on the applicant depositing Kshs. 300,000 as security with the ELC Court at Meru within 21 days, failing which the stay would automatically lapse, the grant being made in consonance with section 63 of the Civil Procedure Act. The applicant was to serve the respondents within 7 days, and the parties were directed to appear before Lady Justice Lucy Mbugua or any other ELC Judge at Meru on 30th July 2019. Costs at the exparte stage were left in the cause.

Key legal issues

#
01

Whether temporary stay of execution should issue at the exparte stage

Holding

Granted conditionally – stay issued pending inter partes hearing subject to security of Kshs. 300,000 deposited within 21 days, failing which the stay lapses

Reasoning

The court noted the applicant was the registered owner of the suit land whose title the lower court had ordered cancelled with immediate effect, and that he was willing to provide security as ordered. The risk that the substratum of the appeal would be lost if the title was cancelled justified a temporary stay, but the court balanced this against the respondents' interests by imposing a security condition and a default-lapse clause, exercising powers under Order 42 Rule 6 and section 63 of the Civil Procedure Act.

p. 2

Legal principles established

#
  • A court granting stay of execution pending appeal may condition the grant on the applicant depositing security for due performance of the decree

Court orders

#
  1. 1.The matter was NOT certified urgent but will be heard on priority basis
  2. 2.Prayer 2 granted – temporary stay of execution of the judgment/decree in Nkubu PM ELC Case No. 39 of 2017 pending inter partes hearing – subject to the applicant depositing Kshs. 300,000 as security with the ELC Court at Meru within 21 days, failing which the stay automatically lapses
  3. 3.The grant made in consonance with section 63 of the Civil Procedure Act
  4. 4.Applicant directed to properly serve the application upon the respondents within 7 days
  5. 5.Parties to appear before Hon. Lady Justice Lucy Mbugua or any other ELC Judge at Meru on 30th July 2019 at 9.00am for hearing or directions
  6. 6.Costs of the application at the exparte stage to be in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63
On appeal from
Nkubu Principal Magistrate's Court (ELC)
Nkubu P.M ELC Case No. 39 of 2017 – Gedion M'Ithima & Anor v Morris Kiruja & Anor
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; sections 1A, 1B, 3A and 63 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Kaimbi v Gedion M’ithima & 2 others [2019] KEELC 3019 (KLR)", Case Analysis (2019). Notice of Motion dated 11th June 2019 (appeal from Nkubu PM ELC Case No. 39 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3019/eng@2019-06-13

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