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ELCAllowedNotice of Motion dated 24th January, 2024 (arising from appeal against PMELCC No 40 of 2019)· [2024] KEELC 5119 (KLR)
Mbiti v Mbiti & another (Environment and Land Appeal E023 of 2022) [2024] KEELC 5119 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court at Bungoma stopped the demolition of a family homestead on disputed land until an appeal over its division is decided.
What this practically means
#Executive summary
#This ruling of the Environment and Land Court at Bungoma (E.C. Cherono, ELC J) determines a Notice of Motion dated 24th January 2024 seeking a temporary injunction pending the hearing of an appeal and cross-appeal against the judgment and decree of the trial court in PMELCC No 40 of 2019 delivered on 29th August 2022, which ordered the division of land parcel Bungoma/Kiminini/2449 into two. The applicant, Simon Olindo Mbiti, sought to restrain the appellant from destroying, demolishing or interfering with the parties' parents' homestead, houses, trees and crops on the suit land, contending that ongoing demolition by the appellant would render the appeal nugatory. The appellant opposed, denying any destruction, stating he had merely fenced the land, and arguing the applicant lacked locus standi as he was not the registered owner and had not met the injunction threshold. The 2nd Respondent, the eldest sibling, supported the application, averring that the land is registered jointly with the appellant in trust for the family and that the trial judgment remains undisturbed. The court framed a single issue: whether the applicant met the threshold for a temporary injunction pending appeal under Order 42 Rule 6(6) CPR. Applying Giella v Cassman Brown, Mrao, Paul Gitonga Wanjau and Amir Suleiman, the court held that demolition would alter the subject matter and render the appeal nugatory, and that the lower risk of injustice lay in granting the orders. The application was allowed, with an injunction issued and costs ordered to abide the appeal.
Key legal issues
#01
Threshold for temporary injunction pending appeal
Holding
The applicant met the Giella v Cassman Brown conditions: a prima facie case, potential irreparable injury, and balance of convenience favouring preservation.
Reasoning
The court applied the settled Giella conditions and Mrao definition of a prima facie case. It found that demolition of the family homestead would alter the subject matter and render the appeal nugatory, and that there was a lower risk of injustice in granting than refusing the injunction, pending the hearing of the appeal on its merits.
p. 4
Legal principles established
#- The High Court, in exercise of its appellate jurisdiction, may grant a temporary injunction pending appeal where the procedure for instituting the appeal has been complied with.
- Demolition or destruction of the subject matter of an appeal may render the appeal nugatory, justifying injunctive preservation orders.
Court orders
#- 1.Pending hearing and determination of the appeal, the appellant, by himself, servants and/or agents, is restrained from destroying, demolishing and interfering with the parties' parents homestead and houses as well as trees and crops on land parcel No Bungoma/Kiminini/2449
- 2.Costs of the application shall abide the appeal
- On appeal from
- Principal Magistrate's Court (ELC), Bungoma
- PMELCC No 40 of 2019
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules - appellate jurisdiction to grant temporary injunction pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbiti v Mbiti & another (Environment and Land Appeal E023 of 2022) [2024] KEELC 5119 (KLR)", Case Analysis (2024). Notice of Motion dated 24th January, 2024 (arising from appeal against PMELCC No 40 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5119/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.