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Court of AppealDismissedCivil Application No. 4 of 2012

JOHN KAYELI OLAKA v LAWRENCE M. OLAKA & 2 OTHERS [2012] KECA 128 (KLR)

Court of Appeal of Kenya
26 April 2012
SBS. E. O. BosireRNR. N. NambuyeHOH. M. Okwengu
833 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop the sale of family land, ruling a repeat stay application over the same dispute cannot be heard twice.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Bosire, Nambuye and Okwengu, JJA) on a rule 5(2)(b) application by John Kayeli Olaka seeking a stay of execution and sale of plot No. Bukhayo/Mundika/3050 pending his intended appeal, Civil Appeal No. 341 of 2001, against the judgment of Tanui, J of the High Court at Kakamega dated 15th March 2001 in H.C.C.C. No. 604 of 1993. The underlying dispute concerned land registered in the name of the applicant's son, the 1st respondent, which had been given as security for a loan from National Bank of Kenya Ltd; the applicant alleged fraud in the change of registration and sought a declaration that the son held the land in trust for him, a claim the High Court rejected. The 2nd and 3rd respondents opposed the application as res judicata, pointing to Civil Application No. 74 of 2003, dismissed by a different bench of the Court on 7th April 2003 for lack of an arguable point. The court agreed: the present motion replicated the earlier one, sought similar orders, and the circumstances had not changed. Restating the settled rule 5(2)(b) test - an arguable appeal plus the nugatory-appeal condition - the court held the application barred by section 7 of the Civil Procedure Act and dismissed it, making no order as to costs. The court also noted it presumed a notice of appeal had been filed despite none being on record, proceeding on the merits because the applicant was an unrepresented elderly man. This ruling binds the High Court and subordinate courts on the rule 5(2)(b) threshold and on the res judicata bar against repeat stay applications to the Court of 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 application for stay of execution and injunction pending appeal under rule 5(2)(b) is res judicata in light of the dismissal of Civil Application No. 74 of 2003
  2. 2.Whether the intended appeal is arguable and whether the appeal's success would be rendered nugatory absent a stay

Key legal issues

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01

Res judicata as between successive rule 5(2)(b) applications

Holding

The application is res judicata because it replicates Civil Application No. 74 of 2003, which a different bench of the Court dismissed on 7th April, 2003 after finding no arguable point, and the circumstances have not changed.

Reasoning

The applicant previously sought the same stay of sale in Civil Application No. 74 of 2003, which was heard and dismissed on the merits, the Court concluding the applicant raised no arguable point. The present motion seeks similar orders; the trustee claim underlying it was rejected and no new circumstances were shown. Section 7 of the Civil Procedure Act therefore bars the fresh application.

p. 2
02

Threshold criteria for relief under rule 5(2)(b)

Holding

The court restates the two cumulative conditions for relief under rule 5(2)(b): an arguable appeal and that the appeal's success would be rendered nugatory without the stay or injunction.

Reasoning

The court reaffirms the settled test that an applicant must show the appeal or intended appeal is arguable, and in addition that a stay or injunction is necessary to prevent the appeal's success being rendered nugatory. Here the court did not reach a fresh application of the test because the earlier dismissal of Civil Application No. 74 of 2003, on the ground that no arguable point was raised, conclusively disposed of the matter as res judicata.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate, first, that the appeal or intended appeal is arguable and, secondly, that unless a stay or injunction is granted the success of the appeal will be rendered nugatory.
  • A repeat application to the Court of Appeal for the same relief already dismissed by a differently constituted bench of the same court is res judicata under section 7 of the Civil Procedure Act.
  • Jurisdiction under rule 5(2)(b) is invoked by the filing of a notice of appeal in the High Court.

Court orders

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  1. 1.Dismissal of the application dated 3rd January, 2012
  2. 2.No order as to costs

The bench

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

SB
majority
RN
majority
HO
majority
On appeal from
High Court of Kenya at Kakamega
H.C.C.C. No. 604 of 1993
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution and sale of plot No. Bukhayo/Mundika/3050 pending the hearing of Civil Appeal No. 341 of 2001

The application is res judicata, having replicated the earlier dismissed Civil Application No. 74 of 2003, and the applicant's trustee claim was already rejected by the Court with no change in circumstances

p. 2

Costs

We make no order as to costs.

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.

For an applicant to succeed in an application under rule 5 (2) (b) above, he must show, firstly that his appeal, or intended appeal is arguable, and secondly, and in addition, that unless he is granted an injunction or stay as the case might be, the success of that appeal or intended appeal shall be rendered nugatory.
p. 2Rule 5(2)(b) test
That being the case, we hold that this application is res judicata (see section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya).
p. 2Res judicata
Accordingly we dismiss the application dated 3rd January, 2012. We make no order as to costs.
p. 2Final orders and costs

Issues in the judgment

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minor

The cause header describes the matter as being in the High Court of Kenya at Kisumu, but the ruling is made by three Judges of Appeal applying rule 5(2)(b) of the Court of Appeal Rules and is delivered at Kisumu by them, indicating the Court of Appeal at Kisumu; the caption appears to be an error in the certified copy.

minor

The record contains no copy of the notice of appeal; the court proceeded on an assumption that one was filed.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "JOHN KAYELI OLAKA v LAWRENCE M. OLAKA & 2 OTHERS [2012] KECA 128 (KLR)", Case Analysis (2012). Civil Application No. 4 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/128/eng@2012-04-26

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