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Court of AppealDismissedCivil Appeal No. 268 of 2001 (application for stay under rule 5(2)(b))

Paul Wathiru Ngure v Philip Njoroge Ngure & another [2002] KECA 232 (KLR)

Court of Appeal of Kenya
19 April 2002
ROR.S.C. OmoloALA.A. LakhaEOE. O'Kubasu
343 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a land transfer order because the defendant's planned appeal showed no real chance of success.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Omolo, Lakha and O'Kubasu, JJA) on the defendant's application for a stay of execution under rule 5(2)(b) of the Court of Appeal Rules, pending the defendant's appeal (Civil Appeal No. 268 of 2001) against the judgment of Sheikh Amin, J. delivered on 10 May 2001. The High Court had granted the plaintiffs' claim in full: a declaration that the defendant, though registered as proprietor of Land Parcel Ndumberi/Githunguri/Githiga/531, held it in trust for the plaintiffs, that the trust be determined, and that the defendant transfer 1.25 acres to each plaintiff in accordance with a draft plan agreed on 17 August 1994. The Court restated the settled twin principles governing stay applications: the applicant must show that the intended appeal is arguable and that, if stay is withheld, the appeal will be rendered nugatory. Applying those principles, the Court was not persuaded that the intended appeal had a probability of success, and declined to exercise its discretion in the applicant's favour. The application was dismissed with costs on 19 April 2002. The ruling binds subordinate courts and the High Court on the rule 5(2)(b) test, though it is a short interlocutory ruling and does not disturb the decision below, which remains intact pending the substantive appeal.

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 with a probability of success
  2. 2.Whether, if stay is withheld, the appeal will be rendered nugatory

Key legal issues

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01

Whether the defendant satisfied the twin principles for grant of a stay under rule 5(2)(b)

Holding

The application fails because the applicant did not demonstrate that the intended appeal is arguable, i.e. has a probability of success.

Reasoning

The Court restated the settled principles for a stay under rule 5(2)(b): the applicant must show the appeal is arguable and that it would be rendered nugatory if stay is withheld. Applying those principles to the facts, the Court found no probability of success in the intended appeal against the High Court decree ordering transfer of 1.25 acres each to the plaintiffs on a finding of trust. Having failed on the arguability limb, the application could not succeed and the discretion was not exercised in the applicant's favour.

p. 2

Legal principles established

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  • An applicant for a stay under rule 5(2)(b) must satisfy two conditions: that the intended appeal is arguable, and that if stay is withheld the appeal will be rendered nugatory.

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.

RO
majority
AL
majority
EO
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the judgment and decree of the High Court delivered on 10 May 2001

The Court was not persuaded that the intended appeal has a probability of success, one of the two conditions for granting a stay

p. 2

Costs

The application for stay is dismissed with costs (costs awarded to the plaintiffs/respondents).

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.

Two conditions have to be satisfied by the applicant: first, it must be shown that the intended appeal is arguable and, secondly, it must also be shown that if stay is withheld, the appeal will be rendered nugatory.
p. 1Twin principles for stay under rule 5(2)(b)
This application for stay, therefore, fails and is dismissed with costs.
p. 2Final orders - dismissal of the stay application

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, "Paul Wathiru Ngure v Philip Njoroge Ngure & another [2002] KECA 232 (KLR)", Case Analysis (2002). Civil Appeal No. 268 of 2001 (application for stay under rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/232/eng@2002-04-19

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