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ELCPartially AllowedMeru ELC Appeal (arising from Meru CM ELC 11 of 2009)· [2020] KEELC 1339 (KLR)

M’Mugwika M’Rugongo v Settlement Fund Trustees & another [2020] KEELC 1339 (KLR)

Environment and Land Court
23 September 2020
LMLucy N. Mbugua
2,027 words in judgment
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The bottom line

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A Meru land court blocked a post-judgment land sale and froze the property, protecting the appeal while refusing extra evidence and stay requests.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru, delivered by Hon. Lucy N. Mbugua, ELC Judge, determines two interlocutory applications arising from an appeal against the judgment in Meru CM ELC 11 of 2009, in which judgment was entered in favour of the 2nd respondent on 23 January 2019. The appellant, who was the plaintiff in the lower court, sought stay of execution, preservation/inhibition of L.R. NGUSISHI/384 and maintenance of the status quo pending appeal. The 2nd respondent, Peter N. Kirigua, sought leave to adduce additional evidence to show that he had implemented the judgment by selling the suit land to a third party, Priscilla Muthoni Mwangi, and that the appeal should therefore be dismissed as overtaken by events. Framing three issues - admission of additional evidence, stay of execution, and dismissal of the appeal - the court applied the tests in Attorney General v Torino Enterprises Limited and Safe Cargo Limited v Embakasi Properties Limited, holding that additional evidence in an appeal must be handled with caution. It found the alleged post-judgment sale could not influence the result of the appeal, and that the 2nd respondent had not availed the title deed or sale agreement evidencing the sale. The court therefore dismissed the 2nd respondent's application. On stay, the court noted that no interim stay had ever issued and that the appellant was not in occupation of the land, making preservation the appropriate remedy; it granted an order of inhibition over the suit land but dismissed all other prayers. The appeal was directed to be heard speedily, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether leave should be granted to admit additional evidence of a post-judgment sale to a third party

Holding

The application for additional evidence was declined

Reasoning

Applying the Torino and Safe Cargo tests, the court found the alleged sale occurred after the trial court determined the case to finality, so it could not influence the result. The 2nd respondent failed to avail the documents evidencing the sale (no title deed in the third party's name and no sale agreement), and admitting the evidence would only convolute the dispute.

p. 3
02

Whether a stay of execution should be granted pending appeal

Holding

Stay was refused but an order of inhibition was granted to preserve the suit land

Reasoning

The court noted no interim stay had ever been in place, the judgment was in favour of the 2nd respondent, and the appellant was not in occupation of the land. Given the risk of alienation, preservation of the land through inhibition (prayer 5) was the appropriate relief, with the legality of the alleged implementation left to the main appeal.

p. 3

Legal principles established

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  • Additional evidence on appeal is admitted cautiously, guided by whether it is new, could not have been obtained with reasonable diligence, would influence the result, and whether there is sufficient reason to admit it

Court orders

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  1. 1.The application dated 11/05/2020 is dismissed
  2. 2.An order of inhibition of the land parcel no. L.R. NGUSISHI/384 in terms of prayer number 5 in the application dated 11.6.2019 is issued
  3. 3.All other prayers in the application dated 11.6.2019 are dismissed
  4. 4.The appeal, whose record has been filed, is to be heard speedily
  5. 5.Each party to bear their own costs of the applications

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 22
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 21 Rule 1
  • Registered Land Act (repealed)Sections 27 and 28
  • Land Registration ActSection 25
  • Land Registration ActSection 80

Cases cited (2)

  • Attorney General v Torino Enterprises Limited
    [2019] eKLR
  • Safe Cargo Limited v Embakasi Properties Limited & 2 others
    [2019] eKLR
On appeal from
Meru Chief Magistrate's Court (Environment and Land)
Meru CM ELC 11 of 2009
Jurisdiction invoked
Appellate jurisdiction over the magistrate's court under the Civil Procedure Act (Sections 3A and 63(e)) and Civil Procedure Rules (Order 22, Order 42 Rule 6, Order 51 Rule 1)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "M’Mugwika M’Rugongo v Settlement Fund Trustees & another [2020] KEELC 1339 (KLR)", Case Analysis (2020). Meru ELC Appeal (arising from Meru CM ELC 11 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1339/eng@2020-09-23

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