Stephen Kipkebut T/A Riverside Lodge and Rooms & another v Natali Ogola & another [2013] KECA 532 (KLR)
The bottom line
#The Court of Appeal refused to halt a land judgment's cancellation orders because they had already taken effect, ruling you cannot stay what has already happened.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The court found the appeal arguable on the strength of counsel's contention that the trial court pronounced on the issue of illegality of title which was neither pleaded nor supported by evidence, but refrained from exploring the merits further.
Counsel for the applicants argued that the issue of illegality of title arose only in cross-examination, was not pleaded, and was not rebutted by evidence. The court accepted that this demonstrated an arguable appeal without delving into the merits, holding that arguability does not require probability of success, only that the appeal is not frivolous.
Whether the appeal would be rendered nugatory if stay was not granted
The applicants failed on the nugatory requirement: the dismissals and the notional cancellations of the grant and transfer had already occurred, and there was no evidence whether the Registrar of Titles had amended the register.
The court examined the decree order by order. Orders 1 and 2 were dismissals with nothing to stay; orders 4 and 5 were notional cancellations already effected by the judgment itself; as to order 6, the applicants conceded they had no evidence whether the Registrar had effected cancellation. The court cannot act in absence of evidence, and a stay where the register had already been amended would be futile.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy two principles: that the intended appeal is arguable and that unless stay is granted the appeal, if successful, will be rendered nugatory.
- The arguability threshold requires only that the appeal is not frivolous; it need not show overwhelming chances of success.
- A completed or notional cancellation effected by a judgment cannot be stayed; the court cannot stay what has already occurred, and it will not order stay in the absence of evidence of the current position on the register.
Court orders
#- 1.The notice of motion dated 28 November 2012 is dismissed
- 2.Costs of the application to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- ELC No. 252 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Kipkebut T/A Riverside Lodge and Rooms & another v Natali Ogola & another [2013] KECA 532 (KLR)", Case Analysis (2013). Civil Application No. NAI 292 of 2012 (UR 212/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/532/eng@2013-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.