Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI. 141 of 2013 (UR 95 of 2013)· [2015] KECA 614 (KLR)

Edward Musa Matiru Karuga v Geoffrey Muriungi Kiraithe & another (suing as trustees of African Holy Ghost Church of Kenya) [2015] KECA 614 (KLR)

Court of Appeal
19 June 2015
1,739 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
This is a single-judgment decision of a three-judge bench of the Court of Appeal at Nairobi (Warsame, Sichale and Otieno-Odek, JJ.A) on a Notice of Motion dated 2nd July 2013 brought under Rules 5(2)(b), 42 and 49 of the Court of Appeal Rules, seeking stay of execution of a High Court ruling of 14th June 2013 (Gicheru, J.) in ELC 1015 of 2012, in which the applicant, Edward Musa Matiru Karuga, had been ordered evicted from Plot No. 523 Patanisho Phase II, Komarock South Shopping Centre, and an injunction restraining his eviction pending an intended appeal. The Court restated the settled twin principles governing Rule 5(2)(b) applications - an arguable intended appeal and nugatory-ness - as laid down in Githunguri v Jimba Credit Corporation and its progeny, and confirmed that a single arguable point suffices but that the legal and factual basis of the application must be succinctly stated. The Court found the application defective: the grounds merely restated the principles without identifying an arguable point, and the applicant's own pleadings before the High Court consistently denied occupation of Plot No. 523, asserting instead possession of Plot No. 4/420 Soweto. The Court held that it must exercise caution on contradictory affidavit evidence and cannot preserve a status quo that is itself disputed. On the nugatory limb, the property would remain in existence and no eviction order touched Plot No. 4/420. The application was dismissed with costs in the appeal. The decision below was not disturbed, as the application was interlocutory. It binds lower courts on the Rule 5(2)(b) thresholds and the treatment of contradictory affidavit evidence.

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

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

Reasoning

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.

p. 3
02

Whether the intended appeal would be rendered nugatory if the orders sought are not granted

Holding

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

Reasoning

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.

p. 3

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. 1.The Notice of Motion dated 2nd July 2013 is dismissed
  2. 2.Costs of the application shall be in the appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 49

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 1688
  • Reliance Bank Limited (In Liquidation) vs. Norlake Investments Limited
    Civil Application No. Nai. 98 of 2002 (unreported)
  • Al-Mahra Limited vs. Premier Foods Industries Limited
    Civil Application No. Nai. 163 of 2006
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.