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Court of AppealAllowedCivil Application No. 167 of 2010

Mungai v Munyi (Civil Application 167 of 2010) [2010] KECA 91 (KLR)

Court of Appeal
22 October 2010
1,510 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal halted enforcement of a High Court order over a Nairobi property because the losing party showed his appeal had merit and would be worthless if the property changed hands.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a rule 5(2)(b) application by Douglas Mbugua Mungai seeking a stay of execution of a High Court judgment pending an intended appeal. The High Court (Ojwang', J.), in consolidated suits, had on 25 March 2009 ordered the respondent's reinstatement into Title No. Dagoretti/Riruta/S15 and awarded him damages against the applicant, who claimed to be the registered proprietor. The applicant filed a notice of appeal and sought a stay; the superior court granted a 30-day stay which expired in mid-2010. The respondent opposed, arguing the orders were not capable of being stayed, the applicant came with unclean hands for allegedly participating in an eviction, and the application was filed some one and a half years after judgment without an extracted decree. The Court of Appeal (O'Kubasu, Ole Keiwua and Nyamu, JJA, in a single joint ruling) reaffirmed the twin tests for rule 5(2)(b) relief - an arguable appeal and nugatory value - and held that the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act mandatorily applies to such applications. It found the grounds on adverse possession under the Limitation of Actions Act and unpleaded damages arguable, and held the appeal would be rendered nugatory because the respondent had not shown means to absorb the value of the suit property. The Court allowed the application, granting a stay in terms of prayer two of the notice of motion dated 5 July 2010, with costs of the application to abide the outcome of the intended 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 applicant's intended appeal is arguable
  2. 2.Whether, if the stay is not granted, the intended appeal or its success would be rendered nugatory
  3. 3.Whether the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act applies to a rule 5(2)(b) application

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds on adverse possession and unpleaded damages raised in the draft memorandum of appeal are not frivolous.

Reasoning

The applicant contended the trial judge erred in finding adverse possession despite only five years (1993-1998) having elapsed under sections 7 and 13 of the Limitation of Actions Act, and in awarding damages never pleaded. The Court found these grounds not frivolous, satisfying the first limb of the rule 5(2)(b) test.

p. 3
02

Nugatory-value test

Holding

The appeal would be rendered nugatory because the respondent has not shown means to absorb the value of the suit property if he disposes of it or changes its character.

Reasoning

The applicant feared the respondent, if reinstated into the commercial property, could put it beyond reach or substantially alter its character. The Court found no evidence the respondent possessed means sufficient to absorb the property's value, so preserving the status quo protected the right of appeal and served the overriding objective by treating both parties with equality.

p. 3
03

Application of the overriding objective to rule 5(2)(b) applications

Holding

The overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act is a mandatory requirement in every rule 5(2)(b) application.

Reasoning

The Court held that in considering the merits of an application under a power in the Act and its Rules, it must as a matter of statute take a broad view of justice, consider all circumstances and act justly. Preserving the status quo treated the parties equally and preserved the right of appeal until final determination on the merits.

p. 3

Legal principles established

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  • Rule 5(2)(b) jurisdiction is original and discretionary; an applicant must show the appeal or intended appeal is arguable and that unless stay is granted the appeal or its success will be rendered nugatory.
  • In exercising power under the Appellate Jurisdiction Act and its Rules, the Court is mandatorily required to apply the overriding objective, take a broad view of justice and consider all relevant circumstances to act justly.

Court orders

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  1. 1.Stay of execution granted in terms of prayer two (2) of the application dated 5th July, 2010
  2. 2.Costs of the application to abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2091 of 1998 (OS)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act

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.

In the result we grant a stay in terms of prayers two (2) of the application dated 5th July, 2010 and further order that the costs of the application abide the outcome of the intended appeal. It is so ordered.
p. 3Final orders - stay granted
It is trite that the jurisdiction of the court under rule 5 (2) (b) is original and discretionary
p. 3Nature of rule 5(2)(b) jurisdiction
we are as a matter of statute law required to take a broad view of justice and take into account all the necessary circumstances, factors, and principles and be satisfied at the end of the exercise that we have acted justly
p. 3Overriding objective in stay applications
In our view, striking the balance in the circumstances is acting fairly and does satisfy the principal aims of the overriding objective.
p. 3Balancing exercise under the overriding objective

Issues in the judgment

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minor

Internal inconsistency in the ruling: the Court states it 'do[es] not agree' with the respondent's prematurity submission yet simultaneously states 'the respondent has not shown' certain matters, and the application itself describes the applicant as 'appellant' inconsistently; the ruling also contains typographical errors ('an mandatory', 'to ensue', an incomplete date 'expire on 27th 2010').

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mungai v Munyi (Civil Application 167 of 2010) [2010] KECA 91 (KLR)", Case Analysis (2010). Civil Application No. 167 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/91/eng@2010-10-22

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