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ELCPartially AllowedNot stated in the excerpt (stay application in pending appeal)· [2021] KEELC 2776 (KLR)

Julius Kilemi Maitai v Silas Milanyi Maitai & 4 others [2021] KEELC 2776 (KLR)

High Court of Kenya (Environment and Land Court listing), Chuka

28 June 2021

PNP. M. Njoroge

522 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court paused execution of a land judgment only after the appellant deposited Kshs. 800,000 as security within 14 days or the pause would lapse.

What this practically means

Executive summary

By a notice of motion anchored on sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, Julius Kilemia Maitai, the appellant, sought urgent ex parte orders in an appeal against the judgment of Hon. G. Sogomo in Tigania PMCC No. 131 of 2010 delivered on 11th October 2018. He sought maintenance of status quo over twelve parcels of land in Nyambene/Kitheo, a stay of execution pending appeal, and temporary injunctions restraining the respondents from entering, plucking tea, cultivating, constructing or otherwise dealing with the suit properties. The application was supported by his affidavit sworn on 25th May 2021, in which he asserted ownership of the parcels, alleged that some respondents had begun disposing of them and threatened eviction, claimed an arguable appeal, and noted his advanced age of 82 years and that the dispute had lasted over 43 years. Upon consideration, the court declined to grant the full range of ex parte prayers, confining itself to a conditional stay of execution: the applicant was to deposit Kshs. 800,000/= with the court as security within 14 days, failing which the stay would automatically lapse. The application was directed to be heard inter partes on 21st July 2021 by an ELC Judge at Meru. No costs were awarded.

Key legal issues

Whether to grant stay of execution pending appeal ex parte

Holding

A conditional stay of execution was granted, conditioned on deposit of Kshs. 800,000/= as security within 14 days, failing which the stay lapses automatically

Reasoning

The court balanced the applicant's claim that he owns the suit properties, that some respondents had begun disposing of them, and that his appeal was arguable, against the need to protect the decree-holder. The judge elected to grant only a conditional stay and deferred all other prayers to an inter partes hearing before the ELC Judge at Meru.

p. 2

Legal principles established

A stay of execution may be granted conditionally upon the applicant depositing security, with the stay lapsing automatically if the condition is not met

Court orders

1.A sum of Kshs. 800,000/= be deposited with the court by the applicant as deposit for security within 14 days, failing which the order of stay granted shall automatically lapse
2.The application to be heard inter partes on 21st July, 2021 by an ELC Judge at Meru
3.No costs are awarded

Authorities

Legislation

Civil Procedure Act, Cap 21Sections 1A, 1B, 3, 3A and 63(e)
Civil Procedure RulesOrder 42 Rule 6

On appeal from: Principal Magistrate's Court, Tigania; Tigania PMCC No. 131 of 2010
Jurisdiction invoked: Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Cap 21 and Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Julius Kilemi Maitai v Silas Milanyi Maitai & 4 others [2021] KEELC 2776 (KLR)", Case Analysis (2021). Not stated in the excerpt (stay application in pending appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2776/eng@2021-06-28

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