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Court of AppealAllowedCivil Application No. NAI. 83 of 2010 (UR. 60/2010)· [2010] KECA 269 (KLR)

Margaret Wanjiku Chege v Daniel Kipkemboi Kibet & 7 others [2010] KECA 269 (KLR)

Court of Appeal
3 June 2010
EGE. M. GithinjiPWP. N. WakiDAD. K. S. Aganyanya
1,538 words in judgment
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The bottom line

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Kenya's Court of Appeal halted a land case and protected a woman's use of 132 acres until her appeal is heard.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Githinji, Waki and Aganyanya, JJ.A.) on a notice of motion dated 12th April 2010 brought under rules 5(2)(b) and 42 of the Court of Appeal Rules. The applicant sought a stay of further proceedings in Kitale HCCC No. 55 of 2009 and an injunction restraining the respondents from interfering with her use of 132.5 acres being part of L.R. No. 1800/3, pending the hearing of her appeal (Court of Appeal at Eldoret, Civil Appeal No. 5 of 2010) against a ruling of Ombija, J. delivered on 1st February 2010, in which the judge refused to extend time for service of a memorandum of appearance and defence that had already been filed, after which judgment had been entered with only the assessment of damages remaining. The respondents opposed, contending the appeal was not arguable, that the applicant had no title and was estopped and bound by a will limiting her to 30 acres, and that she had not offered security. The court held that since the pleadings were already on record, the appeal genuinely questioned whether the judge's discretion was exercised judiciously, and that an arguable appeal is not one that will necessarily succeed. On the nugatory limb, the applicant's evidence that she had been stopped from ploughing and planting, undenied by the respondents, showed a real risk of eviction and alienation which would render a successful appeal nugatory. Both limbs of the rule 5(2)(b) test were satisfied. The application was allowed as prayed: further proceedings in the superior court were stayed and the respondents restrained from interfering with the applicant's user of the suit property pending the appeal. Costs of the application were to be in the appeal.

Key legal issues

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01

Test for relief under rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant must satisfy both limbs: an arguable appeal and that the appeal would be rendered nugatory if relief is refused. Both limbs were demonstrated here.

Reasoning

The court found the intended appeal, which questions whether the judge's refusal to extend time for service of pleadings was a judicious exercise of discretion, was not frivolous. The risk of eviction and alienation of the 132.5 acres of land, undenied by the respondents, established the nugatory limb.

p. 3
02

Nature of an arguable appeal

Holding

An arguable appeal is one that is not frivolous; it need not be one that will necessarily succeed.

Reasoning

Rejecting the respondents' contention that the appeal was not arguable, the court held that the single arguable point — whether the discretion to refuse extension of time was exercised judiciously in a dispute over a substantial parcel of land — sufficed for the first limb of the rule 5(2)(b) test.

p. 3

Legal principles established

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  • An appeal is arguable if it is not frivolous; it need not be one that will necessarily succeed.

Court orders

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  1. 1.Stay of all further proceedings in Kitale HCCC No. 55 of 2009 pending the hearing and determination of Civil Appeal No. 5 of 2010 (Eldoret)
  2. 2.Injunction restraining the respondents from interfering with the applicant's user of the suit property pending the hearing and determination of Civil Appeal No. 5 of 2010
  3. 3.Costs of the application to be in the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 42
On appeal from
High Court at Kitale
H.C.C.C. No. 55 of 2009
Jurisdiction invoked
Rules 5(2)(b) and 42 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Margaret Wanjiku Chege v Daniel Kipkemboi Kibet & 7 others [2010] KECA 269 (KLR)", Case Analysis (2010). Civil Application No. NAI. 83 of 2010 (UR. 60/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/269/eng@2010-06-03

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