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Court of AppealDismissedCivil Application No. NAI 98 of 2000 (47/2000 UR)

David Matuna & 21 others v Lukenya Ranching & Farming Co-op Society Limited [2001] KECA 74 (KLR)

Court of Appeal
11 May 2001
912 words in judgment
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The bottom line

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The Court of Appeal refused to stop the eviction of 22 Lukenya land occupants, ruling their planned appeal had no realistic chance of success.

What this practically means

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Executive summary

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The applicants, 22 persons facing eviction, sought a stay of execution of a High Court ruling of 23 February 2000 (Mwera J, Machakos) dismissing their application to set aside a default judgment in MKS.H.C.C.C. No. 97 of 1997, and a stay of further proceedings, pending an intended appeal. The application was brought under rule 5(2) of the Court of Appeal Rules and section 3A of the Civil Procedure Act. The Court of Appeal (Shah, Bosire and O'Kubasu JJ.A) restated the settled test from Trust Bank Limited v Investech Bank Limited: an applicant under rule 5(2)(b) must show that the appeal or intended appeal is arguable and that, if successful, it would be rendered nugatory unless a stay is granted. The Court noted that the applicants, not being members of the respondent co-operative society, had been perennial losers in numerous cases over the suit land, and that no explanation had been given for their advocates' non-attendance at the hearing on 15 October 1998. It held the applicants had failed to show the intended appeal was arguable and, that being so, did not consider the nugatory limb. The application was dismissed with costs on 11 May 2001. The ruling binds subordinate courts and the High Court on the rule 5(2)(b) test as restated.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, if the intended appeal is successful, it would be rendered nugatory unless a stay of execution is granted

Key legal issues

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01

Test for stay of execution pending appeal under rule 5(2)(b)

Holding

The applicant must satisfy both limbs: an arguable appeal and nugatory-ness if stay is refused. Failure on the first limb disposes of the application without considering the second.

Reasoning

The Court restated the settled principles from Trust Bank Limited v Investech Bank Limited: the rule 5(2)(b) jurisdiction is original and discretionary, and the two guiding principles must be considered against the facts and circumstances of each case. On the facts, the applicants, perennial litigants over the suit land, failed to show the intended appeal against the Judge's exercise of discretion was arguable, so the nugatory limb did not arise.

p. 2
02

Whether the intended appeal against the dismissal of an application to set aside judgment was arguable

Holding

It was not. The applicants gave no explanation for their advocates' non-attendance at the hearing, and their history of repeated unsuccessful litigation over the land suggested an attempt to perpetuate their stay on the suit land.

Reasoning

The High Court had found no good cause shown for counsel's non-appearance under Order IXB rule 8, and no explanation had been given since. The Court declined to express views on the intended appeal but found the applicants had not demonstrated arguability, noting their numerous attempts to remain on the land despite being non-members of the respondent co-operative society.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must show that the appeal or intended appeal is arguable and that, if successful, it would be rendered nugatory unless a stay is granted; these principles are considered against the facts of each case.

Court orders

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  1. 1.The application for stay of execution is dismissed with 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 Machakos
MKS.H.C.C.C. No. 97 of 1997
Jurisdiction invoked
Rule 5(2) of the Court of Appeal Rules and section 3A of the Civil Procedure Act

Relief refused

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Stay of execution of the decree by way of eviction and/or stay of further proceedings in MKS.H.C.C.C. No. 97 of 1997 pending the intended appeal

The applicants failed to demonstrate that the intended appeal is arguable

p. 2

Costs

The application for stay is dismissed with 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.

The upshot of the foregoing is that this application for stay is dismissed with costs.
p. 2Final orders - dismissal of the stay application
we are satisfied that the applicants have not satisfied us that the intended appeal is an arguable one.
p. 2Failure of the arguability limb
As we are so satisfied, we need not concern ourselves with such an application as this one, to wit, whether success in the intended appeal would be rendered nugatory if stay of execution of the decree is not granted pending appeal.
p. 2Disposal on the first limb alone

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David Matuna & 21 others v Lukenya Ranching & Farming Co-op Society Limited [2001] KECA 74 (KLR)", Case Analysis (2001). Civil Application No. NAI 98 of 2000 (47/2000 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/74/eng@2001-05-11

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