Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment and Land Appeal E021 of 2023· [2023] KEELC 17714 (KLR)

Kimene (Being Sued on Behalf of the Estate of Isaac Kimene Nabea alias Isaac Gituma Nabea) v Murithi alias M'inoti Kiautha

Environment and Land Court at Meru
31 May 2023
CNCK NZILI
1,025 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court stopped an eviction pending appeal, ruling that losing your home is 'substantial loss' justifying a stay of execution.

What this practically means

#

Executive summary

#
This is a ruling by the Environment and Land Court at Meru (CK Nzili, J) on a notice of motion dated March 29, 2023 by Patrick Kimene, the appellant, seeking a stay of execution of a trial court judgment dated March 1, 2023 pending the hearing and determination of his appeal (Environment and Land Appeal E021 of 2023). The applicant deposed that the trial court had directed his eviction from the suit land where he lives with his family, that eviction would render him homeless and the appeal nugatory, and that he was willing to provide security, having already deposited Kshs 50,000/=. The respondent, his uncle, opposed the application as a delaying tactic, contending the applicant holds the land in trust for him and his siblings and had failed to meet the Order 42 rule 6 thresholds. The court framed the application within Order 42 rule 6 of the Civil Procedure Rules, sections 1A, 1B and 3 of the Civil Procedure Act and article 159 of the Constitution. It found the 28-day delay not inordinate, and held that being rendered homeless constitutes substantial loss which the respondent had not countered, noting the applicant's undoubted right of appeal and the need to preserve the substratum of the appeal. The application was allowed with conditions: in addition to the security already posted, the applicant was to surrender the original title deed to the Deputy Registrar within seven days, failing which the stay would lapse. The lower court file was to be availed and the matter mentioned before the Deputy Registrar on July 13, 2023. No costs order was made.

Key legal issues

#
01

Whether there was inordinate delay in applying for stay

Holding

A 28-day delay was not inordinate, particularly where it was unclear whether execution had commenced.

Reasoning

The appeal was filed on March 20, 2023 against a judgment of March 1, 2023, and the application on March 29, 2023, a delay of 28 days. The court noted it was unclear whether the decree had been extracted and execution commenced, a fact the respondent, who stood to lose if stay was granted, would have confirmed. The court therefore found no inordinate delay.

p. 2
02

Whether the applicant demonstrated substantial loss

Holding

Yes; eviction rendering the applicant and his family homeless amounts to substantial loss justifying stay.

Reasoning

The applicant averred he would be rendered homeless alongside his family if evicted. Relying on Charles Wahome Gethi, the court noted residence alone is insufficient, but held that homelessness is substantial loss which, once stated, required the respondent to counter it by denial or showing alternatives. The applicant had also offered and posted security, and was entitled to preservation of the appeal's substratum.

p. 2

Legal principles established

#
  • Being rendered homeless from land one occupies constitutes substantial loss for purposes of stay of execution pending appeal
  • The purpose of stay is to preserve the subject matter so the appeal is not rendered nugatory

Court orders

#
  1. 1.Stay of execution of the judgment dated March 1, 2023 pending hearing and determination of the appeal
  2. 2.In addition to the security already posted, the applicant to surrender the original title deed before the Deputy Registrar within seven days, failing which the stay orders shall lapse
  3. 3.Lower court file to be availed and the matter mentioned before the Deputy Registrar on July 13, 2023
On appeal from
Trial court (magistrates' court)
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules; sections 1A, 1B and 3 of the Civil Procedure Act; article 159 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kimene (Being Sued on Behalf of the Estate of Isaac Kimene Nabea alias Isaac Gituma Nabea) v Murithi alias M'inoti Kiautha", Case Analysis (2023). Environment and Land Appeal E021 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17714/eng@2023-05-31

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