Grace Wanjiru Njihia v Joseph Mburu Kimuku [2002] KECA 213 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop an eviction because the applicant failed to show her appeal was arguable and worth preserving.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if the stay is not granted and the appeal succeeds, the appeal would be rendered nugatory
Key legal issues
#Twin test for stay under rule 5(2)(b) of the Court of Appeal Rules
The application was dismissed because the applicant failed to satisfy the twin requirements of an arguable appeal and nugatory-ness.
The court restated the established test for rule 5(2)(b) applications: the applicant must demonstrate that the intended appeal is arguable, and that the appeal, if successful, would be rendered nugatory unless the stay is granted. Considering the litigation history, including the earlier order of Gachuhi J that the deceased Wamaitha had only a life interest which lapsed on her death, the court found the application devoid of merit and dismissed it with costs.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the court both that the intended appeal or appeal is arguable and that, if the application is not granted and the appeal succeeds, it would be rendered nugatory.
Court orders
#- 1.The application for stay of eviction is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2115 of 1999
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of eviction in execution of the High Court decree pending the intended appeal
The application failed the twin test for rule 5(2)(b) relief; the court found it had no merits
Costs
The application is dismissed with costs to the respondent.
Quotable passages
#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 applicant has to satisfy us that the intended appeal or appeal is arguable and that if the application is not granted the intended appeal or appeal if successful, would be rendered nugatory.
it is our view that this application has no merits. The same is dismissed with costs to the respondent.
Issues in the judgment
#The judgment inconsistently dates the High Court judgment, referring to it as delivered on 26th February 2001 in one place and 26th January 2001 in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Wanjiru Njihia v Joseph Mburu Kimuku [2002] KECA 213 (KLR)", Case Analysis (2002). Civil Application No. Nai 39 of 2002 (23/02 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/213/eng@2002-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.