Priscilla Muthoni Kirugi & 19 others v Elgon Insurance Consultants Ltd [2010] KECA 122 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop eviction of twenty families because their appeal was not urgent enough — they had other land to move to.
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 the success of the intended appeal would be rendered nugatory if stay of execution is not granted
- 3.Whether the notice of appeal, filed by only two of the twenty applicants, can sustain the application
Key legal issues
#Twin principles for stay pending appeal under rule 5(2)(b)
The applicants failed to demonstrate that the intended appeal would be rendered nugatory if stay was refused, since they have alternative land and can revert to the suit land or claim damages if they succeed.
The court accepted, arguendo, that the adverse-possession question was arguable but held both limbs must be satisfied. The respondent's unrefuted evidence that the applicants have land at Mwea/Makima to relocate to, the absence of any allegation that the respondent intends to dispose of the suit property, and the availability of damages meant refusal of stay would not render success nugatory.
Effect of a defective notice of appeal and imminent out-of-time filing on a stay application
Where all documents for the appeal were available and the appeal would clearly be filed out of time, and where the notice of appeal cites only two of twenty intending appellants, stay orders would be granted in vain.
The record was complete with a Certificate of Delay and counsel confirmed no reason why the appeal had not been filed. Any appeal would be out of time, and the notice of appeal naming only two applicants could not buttress an appeal by all twenty applicants. These defects independently weighed against granting the orders sought.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the appeal or intended appeal is arguable and that, if the application is refused, the appeal's success would be rendered nugatory; both requirements must be met before the application can be granted.
- A court will not grant an order that would be rendered futile or nugatory in effect; courts do not act in vain.
Court orders
#- 1.The notice of motion dated 19th May 2010 seeking stay of execution of the decree pending appeal is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nyeri
- H.C.C.C. No. 73 of 2002
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Order of stay of execution of the decree issued on 31/3/2010 pending the hearing and determination of the intended appeal
The nugatory-prong was not satisfied: the applicants have land elsewhere to relocate to, have not alleged disposal of the suit property, and could seek damages; additionally the notice of appeal was defective (filed by only two applicants) and the appeal would be filed out of time, so any orders would be granted in vain
Costs
Application dismissed with costs to the respondent
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 applicant has to demonstrate first that the appeal or the intended appeal, as the case may be, is arguable and second, that were the appeal or the intended appeal to succeed, such success would be rendered nugatory by our refusal to grant the application.
In short, the results of the success of the intended appeal, were it to succeed, would not be rendered nugatory.
we think the orders sought in this application may if granted be so granted in vain. Courts do not act in vain.
All in all, this application cannot succeed. It is dismissed with costs to the respondent.
Issues in the judgment
#The cause heading places the court at Nyeri but the delivery clause states the ruling was dated and delivered at Nairobi
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Priscilla Muthoni Kirugi & 19 others v Elgon Insurance Consultants Ltd [2010] KECA 122 (KLR)", Case Analysis (2010). Civil Application 128 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/122/eng@2010-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.