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Court of AppealDismissedCivil Application No. 49 of 2015· [2016] KECA 349 (KLR)

Jane Jeptoo Sawe v Estate of Sylvester Kimagut Sang Represented by Jennifer Chebet Sang [2016] KECA 349 (KLR)

Court of Appeal
29 July 2016
SKS. Gatembu KairuAMA. K. MurgorFSF. Sichale
1,315 words in judgment
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The bottom line

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The Court of Appeal refused to stop enforcement of a land judgment because the applicant had already been evicted - act fast or lose the chance to preserve your appeal.

What this practically means

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Executive summary

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The applicant, Jane Jeptoo Sawe, sought a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules pending an intended appeal against the judgment of the Environment and Land Court at Kitale (E. Obaga, J) dated 5th May 2015, which declared Title Number Kaplamai/Kachibora Block 2/Mateket/95 to be the registered property of the late Sylvester Kimagut Sang and ordered her to vacate. Her defence below had rested on purchase of 6 acres under three agreements and a claim of adverse possession, which the High Court rejected, holding the agreements void for want of land control board consent and that time stopped running when the respondent filed an earlier suit against her late husband. The Court of Appeal (Gatembu, Murgor and Sichale, JJ.A) restated the twin principles governing Rule 5(2)(b) applications: the applicant must show an arguable appeal and that the appeal would be rendered nugatory without stay. The Court found the intended appeal arguable, noting the unsettled question whether the earlier suit stopped time from running for adverse possession. However, it declined the stay because the decree had already been executed - the applicant was evicted on 29th April 2016 after the lower court dismissed her earlier stay application - so the application was overtaken by events and a stay would serve no useful purpose, the object of the rule being preservation of the subject matter. The application was dismissed with each party bearing their own costs. The substantive appeal remains to be heard.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not frivolous; the question whether the earlier suit by Jennifer Sang against Gideon Bore stopped time running for adverse possession raised an arguable issue.

Reasoning

Applying the settled twin principles for Rule 5(2)(b) applications, the Court examined the draft memorandum of appeal and identified the effect of the earlier suit on limitation for adverse possession as a bona fide issue fit for consideration on appeal. Arguability requires only that the appeal deserves consideration, not success.

p. 3
02

Whether stay could be granted where the decree has already been executed

Holding

Stay was refused because the judgment had been executed and the applicant evicted on 29th April 2016; the application was overtaken by events.

Reasoning

The purpose of a stay under Rule 5(2)(b) is preservation of the subject matter to ensure just and effective determination of appeals. With the applicant already evicted and the houses demolished, no order of stay could achieve that purpose or restore the position, so granting it would serve no useful purpose even though the appeal was arguable.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that the appeal will be rendered nugatory if stay is not granted.
  • An arguable appeal need not be one that must succeed; it suffices that it is deserving of the Court's consideration.
  • The object of Rule 5(2)(b) is preservation of the subject matter of the appeal; where the decree has been fully executed, a stay order would serve no useful purpose and will be refused.

Court orders

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  1. 1.The application for stay of execution under Rule 5(2)(b) is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Ishmael Kagunyi Thande v HFCK
    Civil Application No. Nai 157 of 2006
  • Dennis Mogambi Mong’are vs. Attorney General & others
    [2012] eKLR
  • Equity Bank Limited v West Link Mbo Limited
    Civil Application No. Nai 78 of 2011
On appeal from
High Court of Kenya at Kitale (Environment and Land Court)
ELC No. 122 of 2012
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jane Jeptoo Sawe v Estate of Sylvester Kimagut Sang Represented by Jennifer Chebet Sang [2016] KECA 349 (KLR)", Case Analysis (2016). Civil Application No. 49 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/349/eng@2016-07-29

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