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Court of AppealAllowedCivil Application No. NAI. 129 of 2015· [2015] KECA 450 (KLR)

Caroline Awinja Ochieng & another v Jane Annan Mbithe Gitau & 2 others [2015] KECA 450 (KLR)

Court of Appeal
31 July 2015
2,312 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped an eviction of an unregistered plot's occupants, ruling possession counts for a lot when no one holds formal title documents.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Koome, Sichale and Otieno-Odek, JJ.A) on a Notice of Motion dated 15th May 2015 brought under Rules 5(2)(b), 41 and 47 of the Court's Rules, seeking stay of execution of a judgment of the Land and Environment Court at Nairobi (Ongoto J) delivered on 7th May 2015 in ELC Case No. 694 of 2012. The trial court had declared the 1st respondent owner of an unregistered plot (Plot No. C255, also known as Kayole Plot No. 242) and ordered the applicants to deliver vacant possession and remove their structures within 30 days. Both parties claimed ownership: the applicants as purchasers from one Martin Kitambi Robert in 2008 for Kshs.180,000/= and in possession for eight years; the 1st respondent as an allottee of the City Council of Nairobi since 2001. Applying the twin Rule 5(2)(b) principles as stated in Githunguri v Jimba Credit Corporation, J.K. Industries and Reliance Bank v Norlake Investments, the Court found an arguable point in how the applicants came into possession of unregistered land and in the legal consequences of the 1st respondent's documents not having been formally marked as exhibits. It rejected sentimental attachment as a ground for stay, but held that eviction and demolition would damage the substratum of the appeal, noting also a pending criminal appeal with potential bearing. Stay of execution was granted pending the intended appeal, with each party bearing their own costs. This ruling binds subordinate courts and the High Court on the twin stay principles and on possession of unregistered land.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found an arguable point disclosed: the legal consequences of how the applicants came into possession of the unregistered plot and of the alleged failure to formally produce documents as exhibits.

Reasoning

The draft memorandum of appeal raised grounds including failure to evaluate evidence, non-production of the 1st respondent's title documents as exhibits, and the trial judge's reliance on testimony from a criminal case. The Court held that possession of an unregistered plot with no title documents, and the legal consequences of documents not being formally marked as exhibits, were prima facie arguable points requiring consideration and determination.

p. 4
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

Stay was granted because eviction and demolition of the applicants' structures would damage and alter the nature, character and substratum of the property pending appeal.

Reasoning

The respondents conceded eviction would follow if stay were refused, arguing any loss was quantifiable. The Court held that eviction and demolition would alter the substratum of the intended appeal, that preservation of possession would prejudice neither party since the 1st respondent was not in possession, and that the pending criminal appeal could bear on the intended appeal.

p. 4
03

Whether sentimental and emotional attachment to property justifies stay

Holding

Rejected as a standalone ground for stay.

Reasoning

The applicants argued eviction would cause irreparable sentimental and emotional loss given the property was their matrimonial home. The Court, relying on Joseph Gitahi Gachau & another v Pioneer Holdings (A) Limited, held such attachment is not per se a ground for stay; the nugatory test must rest on the substratum of the appeal rather than emotional considerations.

p. 4

Legal principles established

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  • For stay of execution under Rule 5(2)(b) pending an intended appeal, the applicant must show the appeal is arguable (not frivolous) and that, unless stay is granted, the appeal if successful would be rendered nugatory.
  • Sentimental and emotional attachment to property per se is not a ground for the grant of stay orders.
  • Where a suit property is unregistered land with no documents of legal title, possession is prima facie nine-tenths ownership, and possession may be preserved pending determination of an arguable appeal.

Court orders

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  1. 1.Stay of execution of the judgment dated 7th May 2015 and the decree consequential thereto granted pending the hearing and determination of the intended appeal
  2. 2.Each party shall bear his/her costs in this application

Authorities

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Legislation

  • Penal CodeSection 91
  • Rules of this Court (Court of Appeal Rules)Rule 5(2)(b)
  • Rules of this Court (Court of Appeal Rules)Rule 41
  • Rules of this Court (Court of Appeal Rules)Rule 47

Cases cited (4)

  • Githunguri vs. Jimba Credit Corporation Ltd. (No. 2)
    [1988] KLR 838
  • J.K. Industries Ltd. vs. Kenya Commercial Bank Ltd.
    [1982 – 88] 1 KAR 1088
  • Reliance Bank Limited (In Liquidation) vs. Norlake Investments Limited – Civil Application No. 98 of 2002
    unreported
  • Joseph Gitahi Gachau & another -v- Pioneer Holdings (A) Limited & Others, Nairobi Civil Appeal No. 124 of 2008
On appeal from
High Court of Kenya (Land and Environment Court) at Nairobi
ELC Case No. 694 of 2012
Jurisdiction invoked
Rules 5(2)(b), 41 and 47 of the Rules of this Court (Court of Appeal Rules) - application for stay of execution pending intended appeal

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, "Caroline Awinja Ochieng & another v Jane Annan Mbithe Gitau & 2 others [2015] KECA 450 (KLR)", Case Analysis (2015). Civil Application No. NAI. 129 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/450/eng@2015-07-31

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