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ELCAllowedNotice of Motion Application dated 10th February 2020 (Appeal from Kiambu CMCCC No. 234 of 2005)· [2020] KEELC 385 (KLR)

Gitonga Willie , Catherine Ngonyo Gitonga and Sammy Gitari Nyaga (As trustees of Christ Victory Ministries International) v Ann Wanja Kingara [2020] KEELC 385 (KLR)

Environment and Land Court
3 December 2020
1,912 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused the eviction of a landowner with developed property, showing that acting fast and offering security can protect your land during an appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (L. Gacheru J) determined a Notice of Motion dated 10th February 2020 by the Appellant/Applicant, Bishop Winston Gitonga Willie, seeking stay of execution of the decree in Kiambu CMCCC No. 234 of 2005, in which Hon. S. Atambo on 3rd February 2020 allowed the Respondent Ann Wanja Kingara's claim over title Kiambu/Municipality Block 11/340, ordering the Applicant to vacate the suit property and cancelling his title. The dispute concerns competing allotments of the land, the Applicant claiming allotment on 12th August 1993 and the Respondent relying on an allotment letter of 27th September 1993. The court framed a single issue: whether the Applicant was entitled to stay of execution pending appeal. Applying Order 42 Rule 6(2) of the Civil Procedure Rules and established precedent, the court found substantial loss established since the Applicant is in possession, has developed the property with a church, residential units, restaurant and shops, and his title faces cancellation and possible disposal by the Respondent, rendering any successful appeal nugatory. The application was filed seven days after judgment, with no inordinate delay. Balancing the Respondent's entitlement to the fruits of her judgment, the court ordered a deposit of Kshs. 200,000/= as security for costs within 30 days, allowed the application entirely, and directed costs to be in the cause. The ruling was delivered virtually pursuant to COVID-19 directions.

Key legal issues

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01

Substantial loss

Holding

Substantial loss was established because the Appellant is in possession with developments and faces eviction and cancellation of title.

Reasoning

The court noted the suit property is registered in the Appellant's name and occupied by him with a church, residential units, restaurant and shops. The trial decree ordered vacant possession and cancellation of his title. If executed before the appeal, the Respondent could dispose of or subdivide the land, rendering any successful appeal nugatory; damages could not compensate.

p. 3
02

Unreasonable delay

Holding

The application was filed without inordinate delay, seven days after judgment.

Reasoning

Judgment was delivered on 3rd February 2020 and the application filed on 10th February 2020. The court found no inordinate delay in filing.

p. 3
03

Security for due performance

Holding

Security fixed at Kshs. 200,000/=, balancing the Respondent's enjoyment of the judgment with preservation of the property.

Reasoning

The court accepted the Respondent's own proposal of Kshs. 200,000/= as a deposit, holding that the successful litigant must still be allowed to enjoy the fruits of her judgment while the suit property is preserved pending appeal.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and furnish security as ordered; the discretion must be exercised judicially.
  • The purpose of stay of execution pending appeal is to preserve the subject matter so that a successful appeal is not rendered nugatory.

Court orders

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  1. 1.Notice of Motion dated 10th February 2020 allowed entirely with costs in the cause
  2. 2.Stay of execution of the decree in Kiambu CMCCC No. 234 of 2005 pending hearing and determination of the appeal
  3. 3.Appellant/Applicant to deposit Kshs. 200,000/= in Court as security for costs within 30 days

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6 (2)
  • Civil Procedure Rules, 2010Order 21 rule 1

Cases cited (6)

  • Masisi Mwita vs Damaris Wanjiku Njeri
    Civil Appeal No.107 of 2015 (2016) eKLR
  • Halal & Another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
  • Canvass Manufacturers Ltd vs Stephen Reuben Karunditu
    Civil Application No.158 of 1994, (1994) LLR 4853
  • Stephen Wanjohi vs Central Glass Industries Ltd
    Nairobi HCC No.6726 of 1991
  • Consolidated Marine vs Nampijja & Another
    Civil App. No.93 of 1989 (Nairobi)
On appeal from
Kiambu Chief Magistrate's Court
Kiambu CMCCC No. 234 of 2005
Jurisdiction invoked
Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 (appellate jurisdiction over the lower court decree)

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, "Gitonga Willie , Catherine Ngonyo Gitonga and Sammy Gitari Nyaga (As trustees of Christ Victory Ministries International) v Ann Wanja Kingara [2020] KEELC 385 (KLR)", Case Analysis (2020). Notice of Motion Application dated 10th February 2020 (Appeal from Kiambu CMCCC No. 234 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/385/eng@2020-12-03

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