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ELCPartially AllowedNot stated in judgment (application dated 31.12.2019 in the suit)· [2020] KEELC 3512 (KLR)

Mutegi Mugwetwa v County Ministry of Lands, Physical Planning Energy & ICTCounty Government of Tharaka Nithi & 5 others; Chuka Igambang’ombe DevelopmentAssociation (Interested Party) [2020] KEELC 3512 (KLR)

Environment and Land Court
24 February 2020
3,656 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a notice of motion dated 31 December 2019 brought by the plaintiff, Mutegi Mugwetwa, 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, seeking a stay of execution of a judgment delivered on 4 December 2019 which directed him to structurally cut off part of his three-storey building alleged to encroach on a road, together with maintenance of status quo pending appeal. The applicant had filed a Notice of Appeal and offered Kshs.300,000 as security. The 1st and 2nd respondents opposed, arguing that the suit was dismissed and the court cannot stay a negative order, that no substantial loss was demonstrated since the respondents (government agencies) could make full restitution, and that the security offered was grossly inadequate given a subject property valued at Kshs.205,000,000 and potential costs exceeding Kshs.10,000,000. The court, per P. M. Njoroge J, found the Notice of Appeal was filed in good time and that demolition of the building would occasion substantial loss if the appeal succeeded. It agreed the Kshs.300,000 offered was far too little but held that security should not be used to render preservation of the subject matter pending appeal impossible, and tripled the sum. The stay was granted on condition that the applicant deposits Kshs.900,000 with the court within 14 days, failing which the order lapses automatically. Costs were ordered to be in the cause.

Key legal issues

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01

Whether substantial loss was demonstrated

Holding

Substantial loss established because demolition of the three-storey building would be irreversible if the appeal succeeds

Reasoning

The court acknowledged the hierarchy of courts and the right of appeal. Although reluctant to prejudge matters before the Court of Appeal, it found that demolition of the building pending appeal would occasion the applicant substantial loss should the appeal succeed, satisfying the substantial loss condition under Order 42 Rule 6(2)(a).

p. 6
02

Adequacy of security offered

Holding

The Kshs.300,000 offered was inadequate; security was tripled to Kshs.900,000 as a condition of stay

Reasoning

The respondents demonstrated that costs could exceed Kshs.10,000,000 based on a subject property valued at Kshs.205,000,000. The court agreed the Kshs.300,000 offer was far too little, but held security should not be used to render preservation pending appeal impossible, and therefore tripled the offer.

p. 6

Legal principles established

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  • Security for due performance of the decree should not be fixed at a level that renders preservation of the subject matter pending appeal impossible
  • Demolition of the applicant's building would occasion substantial loss if the intended appeal succeeds

Court orders

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  1. 1.Prayer 3 for stay of execution granted on condition that the applicant deposits with the court the sum of Kshs.900,000/= as security within 14 days, failing which the order automatically lapses
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A

Cases cited (6)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • HALAL & ANOTHER vs TAXNTON & TURRIN
    (193) KLR
  • ELENA DONDOLADOYA KORIR vs KENYATTA UNIVERSITY
    (2012) eKLR
  • BAKE 'N' BITE (NRB) LTD vs DANIEL MUTISYA MWEALONZI
    HCA NO 411 OF 2014
  • GITAHI & ANOTHER vs WARUGOGO
    C.A. CIVIL APPLICATION NO 3 OF 1998
  • ROSENGERENS LTD vs SAFE DEPOSIT CENTRE LTD
    919840M 3ALLER 198 (as printed)
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3A of the Civil Procedure Act

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, "Mutegi Mugwetwa v County Ministry of Lands, Physical Planning Energy & ICTCounty Government of Tharaka Nithi & 5 others; Chuka Igambang’ombe DevelopmentAssociation (Interested Party) [2020] KEELC 3512 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 31.12.2019 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3512/eng@2020-02-24

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