Parkirestephen Munkasio & 14 others v Kedong Ranch Limited & 8 others [2016] KECA 52 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
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.
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.
Whether the appeal would be rendered nugatory absent the orders sought
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.
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.
Legal principles established
#- 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
#- 1.The application dated 2nd March 2015 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.