Bernard Thiga v Peter Kihiu Ng’ang’a & another [2020] eKLR Case Summary

Court
Court of Appeal at Nyeri
Category
Civil
Judge(s)
Karanja, Koome, and Asike-Makhandia, JJ.A
Judgment Date
October 23, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Bernard Thiga v Peter Kihiu Ng’ang’a & another [2020] eKLR


1. Case Information:
- Name of the Case: Bernard Thiga v. Peter Kihi Ng’ang’a & Peter Gichuhi Ng’ang’a
- Case Number: Civil Application No. 178 of 2019 (UR 124/2019)
- Court: Court of Appeal at Nyeri
- Date Delivered: 23rd October 2020
- Category of Law: Civil
- Judge(s): Karanja, Koome, and Asike-Makhandia, JJ.A
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court were whether the applicant, Bernard Thiga, demonstrated an arguable appeal against the judgment of the Environment and Land Court and whether a stay of execution of that judgment should be granted pending the appeal.

3. Facts of the Case:
The applicant, Bernard Thiga, owned land parcel number LOC 20/MIRIRA/2679 (the suit land). The respondents, Peter Kihi Ng’ang’a and Peter Gichuhi Ng’ang’a, filed a suit in the Environment and Land Court claiming entitlement to the suit land by adverse possession. The court ruled in favor of the respondents, leading the applicant to seek a stay of execution of the judgment, arguing that the transfer of ownership would render his intended appeal nugatory and that he would face difficulties in recovering the land if the appeal succeeded.

4. Procedural History:
The application for a stay of execution was filed on 25th November 2019. The applicant's motion was supported by an affidavit reiterating the grounds for the application. The respondents did not oppose the application, as no replying affidavit was filed. The court considered the application based on written submissions, which were submitted solely by the applicant's counsel.

5. Analysis:
- Rules: The court considered Rule 5(2)(b) of the Court of Appeal Rules, which allows for the preservation of the subject matter of an appeal. The court emphasized that its discretion under this rule is independent and must be exercised judiciously.

- Case Law: The court referenced several cases, including *Stanley Kang’ethe Kinyanjui v. Tony Keter & 5 Others* and *Trust Bank Limited & Another v. Investech Bank Limited & 3 Others*, which established the principles for granting a stay of execution. The court noted that an arguable appeal does not have to be one that must succeed but should raise serious questions of law deserving consideration.

- Application: The court found that the applicant raised significant legal questions regarding the adverse possession ruling and that the appeal was not frivolous. It also noted that the applicant would suffer substantial loss if the respondents executed the judgment before the appeal was heard, as it would be difficult for him to recover the land later. The court concluded that the applicant met the criteria for granting a stay of execution.

6. Conclusion:
The Court of Appeal granted the application for a stay of execution, allowing the applicant to maintain the status quo pending the determination of the intended appeal. The court highlighted the importance of preventing substantial loss to the applicant while also considering the potential hardship to the respondents.

7. Dissent:
There were no dissenting opinions recorded in this case. All judges on the panel agreed with the ruling.

8. Summary:
The Court of Appeal ruled in favor of Bernard Thiga, granting a stay of execution of the Environment and Land Court's judgment that favored the respondents. This decision underscores the court's commitment to safeguarding the rights of property owners during the appeal process, particularly in cases involving claims of adverse possession. The ruling has implications for how similar cases may be handled in the future, emphasizing the need for careful consideration of the potential loss to appellants if a stay is not granted.

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