Taiko Moriat & 3 others v Melton Lenkakuro & 6 others [2009] KECA 391 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a landowner group's bid to halt execution of a High Court land judgment because the orders sought were academic.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied the nugatory-branch of the Rule 5(2)(b) test
They did not; the orders sought could achieve nothing because the judgment's operative effect (cancellation of the old title and issuance of a new one to the Group Ranch) had already been implemented, and the Judge had not ordered the applicants' eviction.
The court examined the practical effect of the orders sought. The cancellation of the applicants' title had already taken place, so stay could not undo it. The Judge did not order eviction of the applicants, making prayer 3 irrelevant. There was no evidence of intended sub-division, and the respondents were members of the registered Group Ranch entitled to be on the land. Stay would therefore serve no purpose.
Whether the intended appeal was arguable
The court assumed, without deciding, that the appeal might be arguable but held that arguability alone could not sustain the motion since the nugatory limb failed.
The court stated it was prepared to hold that even if the proposed appeal was arguable, the applicants had not demonstrated how its eventual success would be rendered nugatory by refusal of the orders. Because Rule 5(2)(b) requires both limbs to be met, failure on the nugatory limb was fatal regardless of arguability.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal would be rendered nugatory if stay is refused; satisfying one limb alone is insufficient.
Court orders
#- 1.The applicants' notice of motion dated 2nd December, 2008 and lodged in the Court on 4th December, 2008 was dismissed
- 2.The costs of the dismissed motion shall abide the proposed appeal
- On appeal from
- High Court of Kenya, Nairobi
- H.C.C.C. No. 317 of 2004
- 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, "Taiko Moriat & 3 others v Melton Lenkakuro & 6 others [2009] KECA 391 (KLR)", Case Analysis (2009). Civil Appli 311 of 2008 (UR 206/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/391/eng@2009-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.