Gichuhi Kimira v Samuel Ngunu Kimotho Simon Mugweru Wathirwa
The bottom line
#Kenya's Court of Appeal refused a stay of execution because the winning parties had already promised not to sell or encumber the disputed property.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal would be rendered nugatory absent a stay
The Court was not satisfied that the appeal would be rendered nugatory because the respondents had undertaken, pursuant to a ruling of Akiwumi, J. of July 18, 1990 and confirmed by counsel before the Court, not to dispose, sell, alienate or encumber the property.
The principles for granting a stay under rule 5(2)(b) are settled. The applicant relied on the nugatory test. The Court found that the existing undertaking by the respondents, confirmed before it by their counsel, prevented any transfer or disposition of the property. Consequently the substratum of the appeal could not be destroyed and the second condition for a stay was not satisfied.
Whether the Court needed to consider the arguability of the intended appeal
Having found the nugatory condition unsatisfied, the Court declined to consider whether the intended appeal was arguable, as both conditions must be satisfied for a stay.
A stay under rule 5(2)(b) requires satisfaction of both the arguability condition and the nugatory condition. Since the second condition failed on the facts, the Court found it unnecessary to examine arguability. The application therefore failed and was dismissed with costs.
Legal principles established
#- Where an undertaking by the decree holders not to dispose of, sell, alienate or encumber the property is in place, an applicant for a stay under rule 5(2)(b) cannot show that the intended appeal would be rendered nugatory, and the second condition for a stay fails so that the arguability of the appeal need not be considered.
Court orders
#- 1.The application for stay of execution under rule 5(2)(b) is dismissed with costs
- On appeal from
- High Court
- H.C.C.C. No. 880 of 1977 (consolidated with H.C.C.C. No. 908 of 1977)
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichuhi Kimira v Samuel Ngunu Kimotho Simon Mugweru Wathirwa", Case Analysis (1996). Civil Application No. NAI. 243 of 1996 (88/96UR). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.