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Court of AppealDismissedCivil Application No. 14 of 2015 (UR No. 10/2015)· [2015] KECA 11 (KLR)

Wellington Lusweti Barasa & 47 Others v Lands Ltd & Another [2015] KECA 11 (KLR)

Court of Appeal of Kenya
8 May 2015
David Kenani MaragaD.K. MaragaDMD.K. MusingaSKS. Gatembo Kairu
1,896 words in judgment
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The bottom line

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The Court of Appeal dismissed 48 land occupants' bid to halt eviction, ruling they had no arguable appeal because their occupation was with the owner's consent.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Maraga, Musinga & Gatembo Kairu, JJ.A) dismissed an application under rules 5(2)(b) and 47 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act for stay of execution of, and injunction against eviction pursuant to, a ruling of Ombwayo, J. of the Environment and Land Court at Eldoret dated 17 March 2015. That ruling had allowed Kibogy Properties Ltd's application to implement the eviction decree arising from the dismissal of the applicants' adverse-possession suit concerning L.R. No. 8319 at Moiben (2,098 acres), and had dismissed the applicants' own application for stay. The applicants, occupants numbering about 700-800 with family members, argued their intended appeal was arguable and that eviction would render it nugatory and cause irreparable loss. The respondents opposed, contending the notice of appeal had not been served, no record of appeal was filed, the notice was deemed withdrawn under rule 83, no leave to appeal had been obtained, the application was incompetent, and the applicants were causing environmental damage. Reiterating the settled twin criteria for rule 5(2)(b) relief - an arguable appeal and nugatory-ness - the court entertained grave doubts as to arguability: no proof of service of the letter bespeaking proceedings precluded reliance on the proviso to rule 82(1), so the 60-day period expired and no competent appeal existed. Further, the applicants' own witnesses admitted occupation as employees or licensees with the owners' permission, and time does not run for adverse possession in favour of a person in occupation with the owner's consent. The nugatory limb was therefore not reached, and the application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal was arguable for purposes of rule 5(2)(b)

Holding

The intended appeal was not arguable: the applicants could not invoke the proviso to rule 82(1) because there was no proof of service of the letter bespeaking proceedings, so the 60-day period expired and no competent appeal existed; further, their occupation was permissive as employees or licensees, defeating adverse possession

Reasoning

The court found counsel conceded there was no proof of service of the letter bespeaking proceedings, so the applicants could not obtain a certificate of delay under the proviso to rule 82(1) and the 60-day period to appeal expired. Additionally, their own witnesses testified they occupied the land with the permission of successive owners as employees or licensees, so time could not run in their favour for adverse possession. Both grounds shook the arguability of the intended appeal.

p. 3
02

Whether the nugatory limb needed consideration

Holding

Having found the intended appeal not arguable, the court did not consider whether the appeal would be rendered nugatory

Reasoning

Once the first criterion of arguability fails, the second criterion of nugatory-ness need not be addressed. The court accordingly dismissed the application without reaching the nugatory question.

p. 3

Legal principles established

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  • To obtain stay of execution and/or injunction under rule 5(2)(b), the applicant must satisfy the court that he has an arguable appeal and that the appeal will be rendered nugatory unless the orders are granted
  • An arguable appeal is not one which will necessarily succeed; it is one which is not frivolous
  • For purposes of adverse possession, time does not run in favour of a person in occupation of land with the consent of the owner, such as an employee residing on the employer's property

Court orders

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  1. 1.Dismissal of the application for stay of execution and injunction pending appeal
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 47
  • Court of Appeal RulesRule 82(1)
  • Court of Appeal RulesRule 83
  • Civil Procedure RulesOrder 43 Rules (2) and 3

Cases cited (4)

  • Equity Bank Ltd V Westlink Mbo Ltd
    Nairobi Civil Application No. Nai 78 of 2011
  • Dennis Mogambi Mongare V. Attorney General & 3 Others
    C.A. No. Nai 265 of 2011
  • Delamare Estates Ltd V. Ndungu Njai & 42 others
    [2006] eKLR
  • Hughes V. Griffin
    (1969) ALL ER 460
On appeal from
High Court of Kenya, Environment and Land Court at Eldoret
Eldoret E & L Case No. 931 of 2012 (formerly Eldoret HCCC No. 49 of 2008, initially Nairobi HCCC No. 188 of 1991 (OS))
Jurisdiction invoked
Rules 5(2)(b) and 47 of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Wellington Lusweti Barasa & 47 Others v Lands Ltd & Another [2015] KECA 11 (KLR)", Case Analysis (2015). Civil Application No. 14 of 2015 (UR No. 10/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/11/eng@2015-05-08

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