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Court of AppealDismissedCivil Application No. NAI. 13 of 2016· [2016] KECA 52 (KLR)

Parkirestephen Munkasio & 14 others v Kedong Ranch Limited & 8 others [2016] KECA 52 (KLR)

Court of Appeal of Kenya
8 December 2016
3,900 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop an eviction of a Maasai community, ruling the appeal had no genuine arguable point and the community showed no proof of occupation.

What this practically means

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Executive summary

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This is a unanimous ruling of the Court of Appeal (Okwengu, Kiage and J. Mohamed, JJ.A) on a motion under Rule 5(2)(b) of the Court of Appeal Rules in which fifteen members of the Maasai community, suing on their own behalf and on behalf of their families and community members on land known as L.R No. 8396 (IR 11977) in Kedong, sought a stay of execution and an injunction restraining eviction pending an intended appeal against the judgment of Munyao, J. of the Environment and Land Court at Nakuru delivered on 24th September 2015, which dismissed their petition. The applicants argued their appeal was arguable and would be rendered nugatory if they were evicted. Kedong Ranch Ltd and Kengen opposed, contending that the question of the applicants' possession had been conclusively determined in prior litigation - Waithaka, J.'s judgment in Nakuru Civil Suit No. 21 of 2010 and a prior dismissal by this Court of a similar stay application in George Ole Sengui v Kedong Ranch Ltd - and that the applicants were not in occupation at all. The court applied the settled twin criteria for Rule 5(2)(b) relief: an arguable appeal and nugatory-ness. It found no bona fide point of appeal, since the possession issue was res judicata and the definitive findings of Waithaka, J. were never appealed. On nugatory-ness, the court held that one cannot be ejected from land one does not occupy, and the applicants had produced no evidence of possession. The application was accordingly dismissed with costs.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The appeal was frivolous and unarguable because the core question of possession or occupation of the suit land had already been definitively determined by Waithaka, J. in Nakuru Civil Suit No. 21 of 2010 and no appeal was preferred against those findings; the plea of res judicata was properly upheld by Munyao, J.

Reasoning

The court perused Waithaka J.'s judgment in extensu, which found the plaintiffs had not proved possession or occupation. The applicants never appealed those definitive findings. Munyao J. had no choice but to uphold res judicata on adverse possession. The present application was an attempt to dislodge prior determinations through the back door. Even a single bona fide ground suffices for arguability, but here no bona fide point existed.

p. 6
02

Whether the appeal would be rendered nugatory absent the orders sought

Holding

The nugatory limb failed because the applicants produced no evidence of actual occupation or possession of the suit land, so there could be no imminent eviction and no substantial loss capable of rendering the appeal nugatory.

Reasoning

The court held it need not reach the nugatory limb once arguability failed, but did so anyway. The High Court had found on multiple occasions, unreversed on appeal, that the applicants were not in possession. The alleged admission of possession by the respondents was not borne out by the record. One cannot be ejected from where one is not, so there was no eminent danger to forestall.

p. 7

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal would be rendered nugatory absent the relief - the relief being discretionary
  • A single bona fide ground of appeal is sufficient to establish arguability; the ground need not succeed, only be non-frivolous
  • The Court will candidly declare an appeal frivolous and unarguable where that is the case, notwithstanding the general reluctance to make definitive findings at the interim stage
  • A party cannot revive through a fresh Rule 5(2)(b) application issues already determined between the same parties; litigation must come to an end
  • No one can be evicted from land they do not occupy; absent proof of possession, a claim of imminent eviction and hence nugatory-ness fails

Court orders

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  1. 1.The application dated 2nd March 2015 is dismissed
  2. 2.Costs of the application awarded to the respondents
On appeal from
Environment and Land Court at Nakuru
Petition No. 57 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction/stay of execution pending 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, "Parkirestephen Munkasio & 14 others v Kedong Ranch Limited & 8 others [2016] KECA 52 (KLR)", Case Analysis (2016). Civil Application No. NAI. 13 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/52/eng@2016-12-08

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