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Court of AppealDismissedCivil Application No. 104 of 2012· [2013] KECA 384 (KLR)

Samuel Mureithi Murioki & another v Kamahuha Ltd [2013] KECA 384 (KLR)

Court of Appeal of Kenya
22 February 2013
1,979 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a land transfer order, ruling the appeal had no genuine arguable point and technicalities cannot defeat substantive justice.

What this practically means

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Executive summary

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This is a ruling of a full bench of the Court of Appeal at Nairobi (Onyango Otieno, G.B.M. Kariuki and Kiage JJA) delivered on 22nd February 2013 in an application under Rule 5(2)(b) of the Court of Appeal Rules 2010 seeking a stay of execution of the ruling of Koome J of 10th January 2011 in HCCC No. 286 of 2001, which struck out the Applicants' amended defence and ordered the 2nd Applicant to transfer title No. Ruiru/Kiu Block 6/228 to the Respondent, Kamahuha Ltd. The Applicants, who had lodged Civil Appeal No. 49 of 2012, invoked the twin Rule 5(2)(b) criteria of an arguable appeal and nugatory-ness, relying on the established authorities. The court restated that the burden lies on the applicant to raise at least one bona fide arguable point, and that arguability turns not on the number or ingenuity of grounds but on a genuine point of grievance. Examining Koome J's reasoning and Ochieng J's earlier finding that the Applicants had sold mortgaged land using fake title documents, the court held the appeal was not arguable; the board-resolution argument was dismissed as a technicality inimical to substantive justice. The nugatory limb was also held to fail, the Respondent having effectively paid twice for the property. The court endorsed Kimondo J's dismissal of a similar stay application in the High Court and dismissed the application with costs. This decision binds subordinate courts and the High Court on the approach to Rule 5(2)(b) stay applications.

Key legal issues

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01

Whether the Applicants demonstrated an arguable appeal for purposes of Rule 5(2)(b)

Holding

The court held the appeal was not arguable; the grounds, including the absence of a board resolution, were technical attempts to escape clear obligations and were unlikely to succeed on full appeal

Reasoning

The court examined Koome J's reasoning for striking out the amended defence and Ochieng J's earlier finding that the Applicants had used fake title documents to sell mortgaged land. It concluded the protestations of arguability were unpersuasive and that the board-resolution argument was an attempt to exploit a technicality contrary to substantive justice.

p. 4
02

Whether the appeal would be rendered nugatory if stay was denied

Holding

The second limb was not reached in substance, but would also fail: the Respondent had paid the purchase price twice and the Applicants would suffer no loss from the transfer

Reasoning

Having failed on arguability, the court noted it need not consider nugatory-ness, but observed that the Respondent, a victim of forgery and dummy title documents, should not be further exposed to loss, while the Applicants would suffer none from transferring property they had sold and been paid for twice.

p. 4

Legal principles established

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  • The test for stay under Rule 5(2)(b) is two-fold: arguable appeal and nugatory-ness, and the burden of showing a bona fide arguable point lies on the Applicant
  • Arguability is not measured by the number or ingenuity of grounds but by the existence of a genuine, bona fide point of grievance

Court orders

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  1. 1.The application for stay of execution is dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 42

Cases cited (2)

  • Githunguri vs. Jimba Credit Corporation Ltd (No. 2)
    [1988] KLR 838
  • J.K. Industries vs. Kenya Commercial Bank Ltd
    [1982-88] 1 KAR 1088
On appeal from
High Court of Kenya at Nairobi
HCCC No. 286 of 2001
Jurisdiction invoked
Rules 5(2)(b) and 42 of the Court of Appeal Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Mureithi Murioki & another v Kamahuha Ltd [2013] KECA 384 (KLR)", Case Analysis (2013). Civil Application No. 104 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/384/eng@2013-02-22

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