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Court of AppealAllowedCivil Application NAI 35 of 2005 (UR.21/2005)· [2005] KECA 224 (KLR)

Kalondu Mbusya v Martin Kimwele Kikoi &10; others [2005] KECA 224 (KLR)

Court of Appeal of Kenya
14 April 2005
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuJOJ.W. Onyango Otieno
2,182 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that impossible conditions on pausing a judgment amount to refusing it, and paused a land eviction unconditionally.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules for stay of execution pending an intended appeal against part of a High Court ruling (Wendo, J) that had granted a stay of a land decree on two conditions: deposit of Ksh.150,000 within 21 days as security, and filing of the appeal within 21 days. The dispute arose from consolidated land suits over parcel KIENE NGUNDU 16/70, in which Mwera, J had declared the 1st respondent the rightful owner. The applicant contended the conditions were punitive, impossible to meet given her limited means and the need for certified proceedings, and barred her access to justice. The respondents argued the application was incompetent as an appeal against the superior court's ruling, that the applicant was estopped by her earlier offer of security, and that the intended appeal was not arguable. The Court held that a fresh stay application to the appellate court is competent and is not an appeal requiring a notice of appeal; that the intended appeal raised arguable issues concerning the weight given to documents and the difficulty of executing the judgment; and that the appeal would be rendered nugatory if the applicant were evicted and the land sold. The Court found the monetary condition misplaced in a non-money decree and the 21-day filing condition legally untenable as it interfered with the right to seek extension of time, holding that an insurmountable condition amounts to a refusal of stay and an injustice. The Court granted unconditional stay pending the intended appeal, stayed the High Court's conditions, and made no order as to costs.

Key legal issues

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01

Competence of a fresh stay application in the Court of Appeal

Holding

The application was competent; it is a fresh application to be considered afresh, not an appeal against the superior court's ruling on stay.

Reasoning

The respondents argued the application was in substance an appeal against Wendo, J's ruling and required a notice of appeal. The court held that Order 41 rule 4, as originally framed, required first application to the trial court; having done so, the applicant could properly come to the appellate court on a fresh application addressing her dissatisfaction with part of the decision, which the court considers afresh.

p. 3
02

Test for stay under rule 5(2)(b)

Holding

The applicant must show the appeal (or intended appeal) is arguable, and that if successful it would be rendered nugatory absent stay; both limbs were satisfied.

Reasoning

The court restated the two-pronged discretionary test. On arguability, the weight the superior court attached to documents and land records and the potential difficulty of executing the judgment sufficed. On nugatory aspect, eviction and sale of land already registered in the 1st respondent's name would reduce any successful appeal to a pyrrhic victory.

p. 3
03

Conditions attached to a stay order

Holding

The deposit condition was misplaced because this was not a money decree, and the 21-day filing condition was legally untenable, so both conditions were stayed and unconditional stay granted.

Reasoning

The security offered under Order 41 rule 4 had to be relevant and consonant with the circumstances of the suit; a cash deposit was inappropriate for a non-money decree. The filing deadline could not stand because the application before the judge was for stay, not extension of time, and the condition would defeat the applicant's right to seek extension once proceedings and a certificate of delay were ready. An insurmountable condition amounts to a refusal of the stay and to injustice.

p. 4

Legal principles established

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  • A litigant who has applied for stay in the superior court may still make a fresh application for the same stay in the Court of Appeal; such an application is not an appeal against the trial court's decision and needs no notice of appeal.
  • A condition attached to a stay order must not create an impediment to a litigant's access to justice; an insurmountable or impossible condition amounts to a refusal to grant the stay.
  • A court cannot, on a stay application, impose a conditional order requiring an appeal to be filed within a fixed period, as that interferes with the litigant's right to apply for extension of time.

Court orders

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  1. 1.Stay of execution of the decree in H.C.C.C No. 228 of 1999 granted unconditionally pending the filing, hearing and determination of the intended appeal or further orders of the Court.
  2. 2.The conditions ordered by the superior court (deposit of Ksh.150,000 as security and filing of the appeal within 21 days) stayed.
  3. 3.No order as to costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 41 rule 4
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 4
On appeal from
High Court of Kenya at Machakos
H.C.C.C No. 228 of 1999
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; Order 41 rule 4 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kalondu Mbusya v Martin Kimwele Kikoi &10; others [2005] KECA 224 (KLR)", Case Analysis (2005). Civil Application NAI 35 of 2005 (UR.21/2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/224/eng@2005-04-14

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