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Court of AppealDismissedCivil Application No. 8 of 2014 (UR 4/2014)

Joshua Nyamache T Omasire v Charles Kinanga Maena [2014] KECA 585 (KLR)

Court of Appeal
23 May 2014
1,573 words in judgment
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The bottom line

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The Court of Appeal refused to stop enforcement of a land judgment because the applicant had already been evicted and showed no evidence the land would be sold or transferred.

What this practically means

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Executive summary

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This was a single-judge-panel-to-full-panel application, not a full appeal: the Court of Appeal at Kisumu (Onyango Otieno, Azangalala and ole Kantai JJ.A) dealt with a Notice of Motion dated 26th February, 2014 by the appellant, Joshua Nyamache T. Omasire, seeking stay of execution of, and an injunction pending appeal against, the judgment and decree of the High Court of Kenya at Kisii (D. Musinga, J) dated 27th July, 2010 in Kisii HCC No. 153 of 2003, which had dismissed his suit over a parcel of land within Gesima Settlement Scheme and decreed the land belonged to the respondent, Charles Kinanga Maena. The motion was brought under Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 47 of the Court of Appeal Rules, in aid of the pending Civil Appeal No. 151 of 2012. Counsel for the applicant pursued only prayers 5 and 7 of the Motion - the injunction against entry, destruction, alienation or charging of the property, and costs. The court applied the twin Rule 5(2)(b) principles drawn from Reliance Bank Limited v Norlake Investments Limited and Silvester v Chesoni: the applicant must show the appeal is arguable and that it would be rendered nugatory if the orders were refused. The court found the applicant had satisfied neither limb: there was uncontroverted evidence that the applicant had been evicted on 20th March, 2014 pursuant to a High Court eviction order of 13th March, 2014 implemented by M/s Omwoyo Auctioneers, and no affidavit evidence that the respondent intended to dispose of the land. Notably, a previous stay granted by the High Court had already been set aside by this Court on 21st February, 2014 in Civil Appeal No. 93 of 2012. The application was dismissed with costs to the respondent. The decision does not disturb the judgment below, which remains for determination in the pending substantive appeal.

Key legal issues

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01

The twin principles for grant of stay of execution or injunction pending appeal under Rule 5(2)(b)

Holding

The applicant must satisfy both limbs - an arguable appeal and nugatory-ness if stay is refused. The applicant satisfied neither.

Reasoning

The court restated the established Rule 5(2)(b) test as drawn from Reliance Bank Limited v Norlake Investments Limited and Silvester v Chesoni. On arguability, the applicant only attacked the learned judge's assessment of witness credibility and the limitation of the counter-claim, which the court did not find sufficient. On nugatory-ness, there was no evidence by affidavit or otherwise that the respondent intended to sell or alienate the land; mere counsel submissions of possible alienation could not sustain the limb.

p. 3
02

Effect of the applicant's prior eviction on an application for stay of execution and injunction

Holding

The applicant having been evicted on 20th March, 2014 pursuant to an eviction order issued by the High Court on 13th March, 2014 and implemented by the nominated auctioneers, the relief sought was overtaken by events and legally untenable.

Reasoning

The respondent deponed that the applicant was evicted on 20th March, 2014, annexing the eviction order, the order on provision of security and the auctioneer's return confirming implementation. The court found this evidence uncontroverted. Since the applicant had ceased occupation and the respondent was in possession, orders restraining interference or alienation would serve no practical purpose and could not preserve the substratum of the appeal.

p. 3

Legal principles established

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  • On an application for stay of execution and injunction pending appeal under Rule 5(2)(b), the applicant must demonstrate both that the appeal is arguable and that, if successful, it would be rendered nugatory unless the orders are granted; failure to satisfy either limb is fatal.
  • A party who has been evicted in execution of a lawful court order cannot obtain a stay of that execution, the relief having been overtaken by events; a court will not grant orders of no practical effect.

Court orders

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  1. 1.The Notice of Motion dated 26th February, 2014 is dismissed
  2. 2.Costs of the application are awarded to the respondent
On appeal from
High Court of Kenya at Kisii
Kisii HCC No. 153 of 2003
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 47 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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Cite this brief

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Cite this brief

Caselaw, "Joshua Nyamache T Omasire v Charles Kinanga Maena [2014] KECA 585 (KLR)", Case Analysis (2014). Civil Application No. 8 of 2014 (UR 4/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/585/eng@2014-05-23

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