Andrew Cheruiyot & Another v Anyoka Rogito [2009] KECA 53 (KLR)
The bottom line
#Kenya's Court of Appeal halted eviction proceedings, confirming a single arguable point plus real risk of loss justifies staying execution pending appeal.
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, unless stay of execution is granted, the intended appeal, if successful, would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The court found at least one arguable point: the superior court ordered the applicants to pay the entire costs whereas the consent order required the parties to share the survey costs.
The consent order recorded in the superior court expressly provided that the parties would share the costs of the survey, yet the learned judge ordered the applicants to pay the whole of the surveyor's fee and the costs of the suit. That discrepancy raised a bona fide issue for the full court. The court reaffirmed that an arguable appeal is not one that must necessarily succeed but one which ought to be argued fully before the court, and a single arguable point suffices on a Rule 5(2)(b) application.
Whether the appeal would be rendered nugatory absent a stay
The court was satisfied the appeal would be rendered nugatory because part of the applicants' building lay on the land now declared to belong to the respondent and would have to be demolished and, if the appeal succeeded, rebuilt at considerable expense.
The judgment below declared the respondent owner of the surveyed parcel, and part of the applicants' building allegedly protruded onto it. Execution would therefore require demolition of that portion; a successful appeal would then necessitate rebuilding, all at considerable expense. Although the respondent offered to pay damages, the court weighed the interests of both parties and concluded that the nugatory test was satisfied, justifying a stay of execution pending the intended appeal.
Legal principles established
#- On a Rule 5(2)(b) application, the applicant must satisfy the court both that the intended appeal is arguable and that, unless the order sought is granted, the appeal if successful would be rendered nugatory.
- An arguable appeal need not be one that must succeed; it is enough that it raises points that ought to be argued fully before the court.
Court orders
#- 1.Stay of execution of the ruling and decree of the High Court at Kericho (Ang'awa, J) dated 19th February 2009 pending the hearing and determination of the intended appeal, as prayed
- 2.Costs of the application to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kericho
- H.C.C.C. No. 5 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)
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 discretion of the court on an application of this kind has to be exercised upon the established principles which require an applicant to satisfy the court both that the intended appeal or appeal is arguable and that unless the order sought is granted, the appeal, if successful, would be rendered nugatory.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court.
Having considered the interests of both the parties, we have come to the conclusion that this application has merit. We allow the same and order that there be stay of execution as prayed. The costs shall be in the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Cheruiyot & Another v Anyoka Rogito [2009] KECA 53 (KLR)", Case Analysis (2009). Civil Appli 152 of 2009 (UR 104/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/53/eng@2009-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.