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Court of AppealDismissedCivil Application No. Nai. 110 of 1998 (45/98 UR)

JOHNSON NYAKUNDI KINGOINA vs HEZRON NYANGAU [1998] KECA 74 (KLR)

Court of Appeal
21 May 1998
557 words in judgment
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·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause a tenant's eviction because the appeal had no real chance of success and no irreversible harm would result.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, Lakha and Pall, JJ.A.) delivered on 21 May 1998 on an application for stay of execution pending an intended appeal from a ruling of the High Court of Kenya at Kisii (Mbaluto, J.) dated 11 January 1998 in H.C.C.C. No. 103 of 1998. The applicant sought to stay execution of the High Court ruling. The court applied its established two-limb test: whether the intended appeal is arguable, and whether, if successful, it would be rendered nugatory absent a stay. On arguability, the court noted that the tenancy termination notice was issued on the ground of a change of ownership under the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301, that the respondent's reference to the tribunal was still pending, and that in High Court Civil Case No. 29/95 rent had been ordered paid into court. The High Court judge had rejected the applicant's claim of an unwritten amicable arrangement under which the respondent agreed to quit, and the Court of Appeal, on its own assessment of the record, found no arguable appeal. On the nugatory limb, the court held that if the appeal succeeded the premises would still be available for the applicant to take over; the claimed loss of goods worth Shs.1.5 million would be the applicant's own misfortune. The application failed both limbs and was dismissed with no order as to costs. The decision below was not disturbed, as this was an interlocutory stay application, not the appeal itself.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant's intended appeal is arguable
  2. 2.Whether, if the intended appeal succeeds, it would be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not arguable. The High Court judge had rejected the applicant's claim of an unwritten amicable arrangement to quit, and the Court of Appeal, on its own assessment of the recorded word, saw nothing arguable in that contention.

Reasoning

The notice terminating the tenancy was given on the ground of a change of ownership, not rent arrears, and the respondent's reference to the tribunal was still pending. There was also an existing High Court case with an order that rent be paid into court. Against that background, the claim of a consensual arrangement to quit was rejected by the trial judge, and the appellate court found no arguable point on its own review of the record.

p. 2
02

Nugatory value of the intended appeal

Holding

Even if the appeal succeeded, it would not be rendered nugatory without a stay, because the premises would still be there and the applicant could take them over; the claimed loss of goods worth Shs.1.5 million was self-inflicted.

Reasoning

The court reasoned that success on appeal would allow the applicant to retake the premises, so no irreversible harm would flow from refusing the stay. The applicant's placement of goods worth Shs.1.5 million in the premises despite the pending tribunal reference and the order for rent to be paid into court meant any resulting loss would be of his own making, not a ground for a stay.

p. 2

Legal principles established

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  • On an application for stay of execution pending an intended appeal, the court must consider whether the appeal is arguable and, if so, whether it would be rendered nugatory if stay is not granted; both limbs must be satisfied.
  • A party who enters premises in disregard of pending tribunal proceedings and a High Court order that rent be paid into court cannot invoke the resulting loss as a ground for stay; such loss is self-inflicted.

Court orders

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  1. 1.The application for stay of execution pending the intended appeal is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 103 of 1998
Jurisdiction invoked
Inherent appellate jurisdiction to grant stay of execution pending an intended appeal (Rule 5(2)(b) jurisdiction of the Court of Appeal, as described in the ruling's two-limb test)

Relief refused

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Stay of execution pending the hearing of the intended appeal

The applicant failed both limbs: the intended appeal was not shown to be arguable, and the appeal would not be rendered nugatory without a stay; any loss of goods in the premises would be of the applicant's own making

p. 2

Costs

Application dismissed with no order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

At this stage, what the court has to consider is whether the applicant's intended appeal is arguable, and if so, whether that appeal, in the event of its being successful, would be rendered nugatory if we do not grant the stay sought.
p. 2Two-limb test for stay of execution pending appeal
we do not think the applicant has shown before us an arguable appeal
p. 2Failure of the arguability limb
Our answer to that is that that would be unfortunate but the applicant would have been the author of his own misfortune.
p. 2Self-inflicted loss does not justify a stay
We order that this application be and is hereby dismissed but with no order as to costs.
p. 2Final orders and costs

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, "JOHNSON NYAKUNDI KINGOINA vs HEZRON NYANGAU [1998] KECA 74 (KLR)", Case Analysis (1998). Civil Application No. Nai. 110 of 1998 (45/98 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/74/eng@1998-05-21

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