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ELCDismissedMeru ELC Appeal (from Meru CMC ELC 264 of 2018) - two applications dated 17.5.2024 and 14.5.2024· [2024] KEELC 4816 (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 Appeal E021 of 2023) [2024] KEELC 4816 (KLR)

Environment and Land Court
12 June 2024
1,407 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to halt execution of a land judgment because the appellant showed no real loss and had secretly transferred the disputed land to his children during the case.

What this practically means

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Executive summary

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The court dealt with two applications arising from the dismissal on 8.5.2024 of an appeal against a judgment in Meru CMC ELC 264 of 2018 concerning LR No Nyaki/Kithoka/334. The applicant, Patrick Kimene, sought stay of execution or maintenance of status quo of the orders of 22.11.2023 (eviction/vacant possession) pending an intended appeal to the Court of Appeal, citing 30 years' occupation, the deposit of Kshs 50,000 and the title deed as security, and a pending tree-damage suit (Meru CMC No 11 of 2024) claiming Kshs 415,451. The respondent, Stephen Murithi, applied for cancellation of the names of Michelle Kendi Kimene and Patrick Kithinji Kimene from the register, release of the Kshs 50,000 security, and authorization for the executive officer to sign transfer documents, to enable execution. The court, guided by Order 42 Rule 6 of the Civil Procedure Rules and Kenya Shell Ltd v Kibiru, found no demonstrated substantial loss and observed that the applicant had become registered owner with his sister during the suit's pendency, contrary to the doctrine of lis pendens, while withholding that fact. On the respondent's application, the court held it was functus officio regarding cancellation of names, and noted the respondent had already obtained an amended decree at the lower court authorizing removal of the two names, making his application curious. Both applications were dismissed with no order as to costs, with liberty for the Deputy Registrar to release the security to the depositor.

Key legal issues

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01

Whether conditions for stay pending appeal were met

Holding

Stay refused for want of demonstrated substantial loss

Reasoning

Applying Kenya Shell Ltd v Kibiru, the applicant had to show substantial loss that would render the appeal nugatory. He placed no material on what loss he would suffer or developments made on the land, and the pending tree-damage suit did not prove substantial loss.

p. 3
02

Whether the court could alter the title register after judgment

Holding

The court is functus officio on that prayer

Reasoning

Having pronounced itself on the appeal, the court could not order cancellation of names from the register. The decree holder was aware of the register changes and should have sought amendment of pleadings, cross-appeal or due diligence instead.

p. 3
03

Effect of registering the children as owners during pendency of the suit

Holding

Registration during pendency offended the doctrine of lis pendens

Reasoning

The applicant deliberately withheld that he became registered owner with his sister during the suit, contrary to lis pendens; the court would not sanction such illegality by granting stay.

p. 2

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant stay and must be demonstrated through evidence
  • The legal duty is on the appellant to prove that an appeal would be rendered nugatory

Court orders

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  1. 1.Both applications dated 17.5.2024 and 14.5.2024 dismissed
  2. 2.No order as to costs
  3. 3.The Deputy Registrar is at liberty to release the Kshs 50,000 security to the depositor
On appeal from
Chief Magistrate's Court, Meru
Meru CMC ELC 264 of 2018
Jurisdiction invoked
Order 42 Rule 6(1) & (2) of the Civil Procedure Rules - stay pending appeal to the Court of Appeal

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, "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 Appeal E021 of 2023) [2024] KEELC 4816 (KLR)", Case Analysis (2024). Meru ELC Appeal (from Meru CMC ELC 264 of 2018) - two applications dated 17.5.2024 and 14.5.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4816/eng@2024-06-12

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