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ELCAllowedNot stated in judgment (appeal from Machakos CM ELC No. 56 of 2019, consolidated with ELC No. 79 of 2019)· [2024] KEELC 5967 (KLR)

Mbithi v Ngumbi & 2 others (Environment and Land Appeal 4 of 2024) [2024] KEELC 5967 (KLR)

Environment and Land Court
19 September 2024
COChristine Ochieng
1,349 words in judgment
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The bottom line

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Kenya's Environment and Land Court paused a judgment cancelling a landowner's title, protecting his ownership rights until his appeal is fully heard.

What this practically means

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Executive summary

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The appellant, Joseph Kimeu Mbithi, moved the Environment and Land Court at Machakos by Notice of Motion dated 4 March 2024, brought under Sections 3 and 3A of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules, seeking a stay of execution of the judgment delivered on 12 February 2024 in Machakos CM ELC No. 56 of 2019 (consolidated with ELC No. 79 of 2019), in which judgment was entered against him and his title to Machakos Town Block 3/1024 was ordered cancelled pending his appeal. He argued he would suffer substantial loss, offered security, and contended the appeal had high chances of success. The 2nd respondent opposed, asserting he and Agnes Nthenya Maithya were bona fide purchasers in possession and utilising the land since 2014, that the application did not meet Order 42 Rule 6(2) conditions, and that the appeal had no prospects of success. The court framed a single issue: whether stay of execution should issue pending appeal. Relying on Order 42 Rule 6(2) and the Court of Appeal decisions in Butt v Rent Restriction Tribunal and James Wangalwa v Agnes Naliaka Cheseto, Justice Christine Ochieng observed that the appellant is the registered proprietor while the respondents are in possession; consequently no prejudice arises from maintaining the appellant's certificate of title pending appeal, and cancelling the title would render the appeal nugatory. The court allowed the application, stayed the judgment pending the appeal, and directed each party to bear their own costs.

Key legal issues

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01

Whether the conditions in Order 42 Rule 6(2) for stay of execution pending appeal were satisfied

Holding

Stay granted: substantial loss demonstrated since revocation of the title pending appeal would render the appeal nugatory, and the application was brought timeously with an offer of security

Reasoning

The court applied Order 42 Rule 6(2) and the Butt v Rent Restriction Tribunal principles. It noted the appellant is the registered proprietor while the respondents are in possession. Since possession lies with the respondents, maintaining the appellant's title until appeal causes no prejudice. Revoking the title pending appeal would render the appeal nugatory, and the appellant has an Article 50 right to be heard.

p. 3

Legal principles established

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  • Where the decree-holder is already in possession of the suit land, there is no prejudice in maintaining the applicant's certificate of title pending appeal

Court orders

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  1. 1.The Judgment in Machakos CM ELC No. 56 of 2019 Joseph Kimeu Mbithi vs. Augustine Mutiso Ngumbi & Others be and is hereby stayed pending the outcome of the Appeal
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure RulesOrder 42 Rule 6(1) and 6(2)
  • Constitution of Kenya, 2010Article 50

Cases cited (2)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • James Wangalwa & Another Vs Agnes Naliaka Cheseto
    (2012) eKLR
On appeal from
Chief Magistrate's Court, Machakos
CM ELC No. 56 of 2019
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Order 42 Rule 6(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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Cite this brief

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Cite this brief

Caselaw, "Mbithi v Ngumbi & 2 others (Environment and Land Appeal 4 of 2024) [2024] KEELC 5967 (KLR)", Case Analysis (2024). Not stated in judgment (appeal from Machakos CM ELC No. 56 of 2019, consolidated with ELC No. 79 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5967/eng@2024-09-19

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