Edward Musa Matiru Karuga v Geoffrey Muriungi Kiraithe & another (suing as trustees of African Holy Ghost Church of Kenya) [2015] KECA 614 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop an eviction because the applicant's own case contradicted itself and his appeal showed no arguable legal point.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
It is not arguable: the grounds did not identify any arguable point of law, and the applicant has always pleaded that he never occupied Plot No. 523, the subject of the eviction order
The draft Memorandum of Appeal merely alleged error without identifying an arguable point. More decisively, the applicant's own pleadings before the High Court denied occupation or possession of Plot No. 523, claiming instead Plot No. 4/420 Soweto. The Court held that contradictory affidavit evidence warranted caution and that the applicant could not found an arguable appeal on a plot he denies occupying.
Whether the intended appeal would be rendered nugatory if the orders sought are not granted
It would not: the suit property would still exist and the applicant is not subject to any eviction order regarding Plot No. 4/420, the plot he actually claims
The Court reasoned that by the time the intended appeal was finalised the suit property would still be in existence and nothing would prevent the applicant being registered as proprietor; the property was not depreciating. Since the applicant claimed only Plot No. 4/420, against which no eviction order existed, the nugatory test failed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that it will be rendered nugatory unless a stay is granted; the jurisdiction is original and discretionary
- A single arguable point suffices on an application under Rule 5(2)(b)
- An applicant under Rule 5(2)(b) must state the legal and factual basis of the application; merely restating the twin principles is insufficient
- The Court must exercise caution in granting orders based on affidavit evidence that is prima facie contradictory, and cannot preserve a status quo that is itself disputed
Court orders
#- 1.The Notice of Motion dated 2nd July 2013 is dismissed
- 2.Costs of the application shall be in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- ELC 1015 of 2012
- Jurisdiction invoked
- Rules 5(2)(b), 42 and 49 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Musa Matiru Karuga v Geoffrey Muriungi Kiraithe & another (suing as trustees of African Holy Ghost Church of Kenya) [2015] KECA 614 (KLR)", Case Analysis (2015). Civil Application No. NAI. 141 of 2013 (UR 95 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/614/eng@2015-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.