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 8th April 2019 (arising from Butere PMCC No. 184 of 2011)· [2019] KEELC 3412 (KLR)

Jatheth Chiteri v Brookway Nyonge [2019] KEELC 3412 (KLR)

High Court of Kenya
14 May 2019
NMN.A. Matheka
880 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

#

The High Court in Kakamega stopped an eviction, letting the property owner keep things as they are until his appeal is fully heard.

What this practically means

#

Executive summary

#
The applicant, Jatheth Chiteri, moved the High Court at Kakamega by a notice of motion dated 8th April 2019 under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 42 rules 2, 3 and 4 and Order 51 rules 4, 6 and 10(2) of the Civil Procedure Rules and Article 159(2)(d) of the Constitution, seeking interim stay of execution of eviction orders made in Butere PMCC No. 184 of 2011, together with compliance directions to the OCS Butere Police Station and costs. He argued that the contested property houses his only commercial building and source of livelihood; that he is about 60 years old and the building represents his life's savings; and that the disputed parcel, L.R. No. Marama/Shinamwenyuli/2, originally registered in the respondent's name at the time of the eviction order made about five years earlier, is now registered in his name through transmission in P&A Cause No. 403 of 1998 and redesignated L.R. No. Marama/Shinamwenyuli/2094 after subdivision. He contended that executing the eviction order against him as registered proprietor would violate his rights under Articles 40 and 64 of the Constitution. The respondent was served but did not attend court or file grounds of opposition. Matheka J applied the Giella v Cassman Brown conditions as elaborated in Mrao Ltd v First American Bank, found a prima facie case with probability of success and irreparable injury not compensable in damages, and ordered that the status quo be maintained pending the hearing and determination of the appeal, with costs in the cause.

Key legal issues

#
01

Whether the conditions for interlocutory relief (stay of eviction) were established

Holding

The applicant established a prima facie case with a probability of success and would suffer irreparable injury not adequately compensable by damages; status quo to be maintained pending the appeal

Reasoning

The court applied the Giella v Cassman Brown conditions for interlocutory orders as elaborated in Mrao Ltd v First American Bank. The applicant showed the contested parcel, originally registered in the respondent's name, was now registered in his name through transmission in P&A Cause No. 403 of 1998 and redesignated after subdivision, and that eviction would destroy his only commercial building and source of livelihood. The respondent was served but neither attended nor filed grounds of opposition.

p. 2

Legal principles established

#
  • A prima facie case is one in which, on the material presented, the court concludes there exists a right which has apparently been infringed by the opposite party so as to call for an explanation or rebuttal, and it is more than an arguable case

Court orders

#
  1. 1.That the status quo be maintained pending the hearing and determination of the appeal
  2. 2.Costs to be in the cause

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 42 rules 2, 3, 4; Order 51 rules 4, 6, 10(2)
  • Constitution of Kenya, 2010Article 159(2)(d); Articles 40 and 64

Cases cited (2)

  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
On appeal from
Butere Principal Magistrate's Court
PMCC No. 184 of 2011
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 42 rules 2, 3 and 4 and Order 51 rules 4, 6, 10(2) of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jatheth Chiteri v Brookway Nyonge [2019] KEELC 3412 (KLR)", Case Analysis (2019). Notice of Motion dated 8th April 2019 (arising from Butere PMCC No. 184 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3412/eng@2019-05-14

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