Benjamin Aburuki v Samuel Kilingo [2007] KECA 116 (KLR)
The bottom line
#The Court of Appeal refused to protect a landowner's property during his appeal because he failed to show his case had real merit.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The Court was not convinced that the intended appeal was arguable; the finding of the learned Judge on prima facie case was not shown to be unsupported by the evidence.
The applicant's only submission was that the trial Judge's conclusion that there was no prima facie case with probability of success was mistaken given the evidence. The Court considered the material placed before it and before the superior court and was not convinced, prima facie, that the Judge's finding was unsupported by the evidence, while expressly declining to say the appeal could never succeed.
Whether the appeal would be rendered nugatory absent an injunction
The nugatory test did not fall for consideration because the arguability threshold had failed; in any event the respondent's activities on the land were not shown to be irreversible.
Since the Court found the intended appeal not arguable, it need not consider nugatory prejudice. Even if it had, the only evidence was that the respondent was digging the land and erecting structures such as a latrine, and the applicant did not demonstrate that those actions were irreversible if the Court found for him.
Legal principles established
#- An applicant under Rule 5(2)(b) must establish, first, that the appeal or intended appeal is arguable and, secondly, that if no injunction is granted the success of the appeal would be rendered nugatory.
- There can be no stay of an order where the superior court made no positive order capable of being stayed; a dismissal of an application leaves nothing to stay.
- The nugatory question arises for consideration only if the Court first finds the appeal arguable.
Court orders
#- 1.The notice of motion dated 6th July 2007 and lodged in the Court on 10th July 2007 be and is hereby dismissed with the costs thereof to the respondent
- On appeal from
- High Court of Kenya at Meru
- Civil Case No. 31 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Aburuki v Samuel Kilingo [2007] KECA 116 (KLR)", Case Analysis (2007). Civil Application 161 of 2007 (UR104/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/116/eng@2007-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.