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 AllowedMeru ELC (suit number not stated in judgment); Notice of Motion dated 17.12.2018· [2019] KEELC 3407 (KLR)

Edward Mutua M’ Mwithiga v Charles Kimaita M’ Mwithimbu & another [2019] KEELC 3407 (KLR)

Environment and Land Court
15 May 2019
LMLucy N. Mbugua
1,038 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 Meru court stopped a land transfer for one year, but only because the defendant agreed to deposit Kshs 100,000 as security.

What this practically means

#

Executive summary

#
The 1st defendant applied by Notice of Motion dated 17 December 2018 under Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act for temporary stay of execution of the judgment and decree delivered on 8 November 2018, pending an intended appeal to the Court of Appeal. The applicant argued the suit land was family land, that substantial loss and irreparable harm would follow execution, that the appeal would be rendered nugatory, and offered security. The plaintiff opposed, contending the transfer would not affect the status of the land as he still lived there and it would revert if the appeal succeeded, and filed a preliminary objection that upon the filing of the Notice of Appeal the matter lay within the Court of Appeal's province, ousting this court's jurisdiction. The court heard both by written submissions. Relying on its recent decision in Betha Ndumba M'Twaruchiu and Magnate Ventures vs Simon Mutua Muatha & Another, the court held that the conditions for stay differ between the Court of Appeal (Rule 5(2)) and the High Court (Order 42 rule 6), and that it retained jurisdiction; the preliminary objection was dismissed. On the application, the court found the only substantial loss lay in the excision of one acre and balanced the plaintiff's position given the counterclaim for eviction. It allowed the application conditionally: a one-year stay on deposit of Kshs 100,000 security within 30 days, the plaintiff to continue occupying the one acre, and costs of the application to the applicant.

Key legal issues

#
01

Jurisdiction after filing of Notice of Appeal

Holding

The preliminary objection failed; the ELC/High Court has jurisdiction to grant stay of execution pending appeal under Order 42 rule 6 notwithstanding a filed Notice of Appeal.

Reasoning

The court noted its prior decision in Betha Ndumba M'Twaruchiu citing Magnate Ventures vs Simon Mutua Muatha, that the conditions for stay pending appeal differ between the High Court and the Court of Appeal. The Court of Appeal conditions arise under Rule 5(2), which was not invoked here, so the respondent's authorities were inapplicable.

p. 2
02

Conditions for stay under Order 42 rule 6(2)

Holding

Substantial loss lay only in the excision of the one acre; a conditional stay for one year with security was appropriate.

Reasoning

The court held that nothing else remained to be executed save the excision of one acre, which constituted the sufficient cause and substantial loss, while noting the plaintiff would also be affected given the applicants' counterclaim for eviction. It therefore balanced the parties' positions with a conditional stay and preserved the plaintiff's occupation.

p. 2

Legal principles established

#
  • The High Court retains jurisdiction to grant stay of execution under Order 42 rule 6 even after a Notice of Appeal has been filed; the conditions for stay in the Court of Appeal (Rule 5(2)) differ from those in the High Court

Court orders

#
  1. 1.Notice of Preliminary Objection dated 3rd January 2019 dismissed
  2. 2.Stay of execution granted for one year, conditional on deposit of Kshs 100,000 as security within 30 days failing which the stay lapses
  3. 3.Plaintiff/respondent to continue to occupy the one acre out of the suit land Ntima/Ntakira/1966
  4. 4.Applicant to pay costs of the application
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; jurisdiction over stay pending appeal to the Court of Appeal retained by the High Court/ELC notwithstanding filing of Notice of Appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Edward Mutua M’ Mwithiga v Charles Kimaita M’ Mwithimbu & another [2019] KEELC 3407 (KLR)", Case Analysis (2019). Meru ELC (suit number not stated in judgment); Notice of Motion dated 17.12.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3407/eng@2019-05-15

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