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ELCDismissedChief Magistrate Mavoko ELC Appeal (lodged appeal from Mavoko CM ELC No. E001 of 2021)· [2022] KEELC 1471 (KLR)

Timothy Kisina Kithokoi v Elijah Kitele & another [2022] KEELC 1471 (KLR)

Environment and Land Court
16 February 2022
ANA. Nyukuri
2,868 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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The Appellant, registered proprietor of Title No. I.R. 223672 (LR 337/2633), filed a Notice of Motion dated 14th June 2021 seeking stay of proceedings, the ruling and orders of Hon. B. Kasavuli PM of 3rd June 2021 in Mavoko CM ELC No. E001 of 2021, whereby his application for a temporary injunction was dismissed, and a further injunction restraining the Respondents from interfering with his possession of the suit property pending appeal. He argued he was in possession with tenants on the property, held a valid certificate of lease and deed plan, and that stay was needed to avoid parallel decisions. The 1st Respondent opposed, contending the appellant was not in possession, the title was under police investigation for fraud, and that new evidence in the supplementary affidavit was not before the lower court. The court framed two issues: stay of proceedings and injunction pending appeal. Applying Section 6 of the Civil Procedure Act and Global Tours & Travels, it held stays are granted sparingly and refused stay because the lower court was functus officio on the injunction orders, so no parallel decisions could arise. On the injunction under Order 42 Rule 6(6), applying Patricia Njeri, Madhupaper and KCB v Ombija, the court held the question is whether the appeal is arguable, not whether a prima facie case exists. As the appellant did not attach the application subject to the appeal, the court could not verify the evidence before the lower court, and found no arguable appeal, no demonstrated irreparable injury and no balance of convenience in his favour. The application was dismissed with costs.

Key legal issues

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01

Stay of proceedings pending appeal

Holding

Refused; the concern about parallel decisions was unfounded since the lower court was functus officio on the injunction orders

Reasoning

The court applied Section 6 of the Civil Procedure Act and the Global Tours & Travels principles, holding that stay of proceedings is a grave interruption to be exercised sparingly. Since the appeal only challenged refusal of a temporary injunction and the lower court had become functus officio on that question, no parallel decision could arise and continuation of the lower court suit posed no prejudice.

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02

Temporary injunction pending appeal

Holding

Refused; the appellant failed to demonstrate an arguable appeal, irreparable injury or balance of convenience

Reasoning

Applying Order 42 Rule 6(6) and the Patricia Njeri and Madhupaper principles, the court held that at this stage the question is whether the appeal is arguable, not whether a prima facie case was made. The applicant failed to attach the application subject to the appeal, so the court could not verify the evidence before the lower court; possession was contested; and no material showed the balance of convenience favoured him.

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Legal principles established

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  • Stay of proceedings should be granted sparingly and only in exceptional circumstances
  • The correctness of a lower court decision on injunction is measured against the evidence produced in that court, not new evidence on appeal
  • An injunction pending appeal will be refused where the appeal is frivolous or where it would inflict greater hardship

Court orders

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  1. 1.The Notice of Motion application dated 14th June 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 3B, 6, 63(e)
  • Civil Procedure RulesOrder 42 Rule 6(6), Order 51 Rule 1
  • Constitution of KenyaArticle 50(2)(e)
  • Land Registration ActSections 25, 26

Cases cited (9)

  • A. B & Another vs. R. B.
    [2016] eKLR
  • Kenya Electricity Transmission Company Limited vs. Kibutu Limited
    [2019] eKLR
  • P. M. Kyule & Another vs. Michael Musyoka & 2 Others
    ELC Machakos Case No. 169 of 2016
  • Global Tours & Travels Limited
    Nairobi HC Winding Up Cause No. 43 of 2000
  • Christopher Ndolo Mutuku & Another vs. CFC Stanbic Bank Ltd
    [2015] eKLR
  • Patricia Njeri & 3 Others vs. National Museum of Kenya
    [2004] eKLR
  • Giella vs. Cassman Brown
    [1973] EA 358
  • Madhupaper International Limited vs. Kerr
    [1985] eKLR
  • Kenya Commercial Bank Limited vs. Nicholas Ombija
    [2009] eKLR
On appeal from
Chief Magistrate's Court, Mavoko
CM ELC No. E001 of 2021
Jurisdiction invoked
Sections 3A, 3B, 6 and 63(e) of the Civil Procedure Act, Order 42 Rule 6(6) and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Timothy Kisina Kithokoi v Elijah Kitele & another [2022] KEELC 1471 (KLR)", Case Analysis (2022). Chief Magistrate Mavoko ELC Appeal (lodged appeal from Mavoko CM ELC No. E001 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1471/eng@2022-02-16

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