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 AppealAllowedCivil Application No. 68 of 2015 (UR 42/2015)· [2016] KECA 460 (KLR)

Wensley Barasa v Immaculate Awino Abongo [2016] KECA 460 (KLR)

Court of Appeal
2 June 2016
1,218 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal stopped an eviction because a 30-year occupant's land appeal deserved a hearing before he could be removed.

What this practically means

#

Executive summary

#
In this interlocutory ruling, a three-judge bench of the Court of Appeal at Kisumu (Musinga, Gatembu Kairu and Murgor, JJ.A.) determined an application under rule 5(2)(b) of the Court of Appeal Rules by Wensley Barasa seeking stay of execution of an eviction order issued by the High Court at Bungoma (Mukunya, J.) on 28 October 2015 in HCC E&L No. 93 of 2011 in favour of Immaculate Awino Abongo, the registered proprietor of Title Number E. Bukusu/S. Kanduyi/5778. The High Court had found the applicant had no interest in the property capable of protection and ordered his eviction, giving him 60 days to remove his structures. The applicant, who claimed to have purchased portions of the land in 1987-1988 and to have occupied it for over 30 years, had a pending adverse possession suit before the Environment and Land Court at Bungoma and had filed Civil Appeal No. 115 of 2015. Applying the settled twin principles that an applicant must show an arguable appeal and that the appeal would be rendered nugatory absent stay, the Court found the intended appeal arguable because it raised the question whether the applicant had an interest capable of protection, and found the nugatory limb satisfied because the applicant appeared to be in possession, such that eviction would render the appeal nugatory. The Court allowed prayer 2 of the motion, staying execution, with costs of the application to abide the outcome of the appeal. This ruling does not decide the appeal itself; it preserves the subject matter pending its hearing, and its statements on the rule 5(2)(b) test bind subordinate courts and guide future applications.

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

The Court found the intended appeal not frivolous because it raises the question whether the applicant has an interest in the property capable of protection and whether the Judge's contrary finding was correct.

Reasoning

The Court reiterated that an arguable appeal need not be one that must succeed, only one deserving of consideration. The applicant's claim of long possession and a pending adverse possession suit raised a bona fide question about the correctness of the trial judge's finding that he had no interest capable of protection, satisfying the first limb of the rule 5(2)(b) test.

p. 2
02

Whether the appeal would be rendered nugatory if stay is denied

Holding

Because the applicant appeared to be in possession, his eviction before the hearing of the appeal would render the appeal nugatory if he ultimately succeeded.

Reasoning

The parties disputed the applicant's possession, but the Court noted the eviction suit itself would have been unnecessary had the applicant never been in possession, and the respondent described him as living on the land as a squatter. On the material before it, the Court found the applicant in possession and held that eviction would destroy the subject matter of the appeal, satisfying the nugatory limb.

p. 3

Legal principles established

#
  • An applicant under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it will be rendered nugatory if stay or injunction is not granted.
  • An arguable appeal is not one that must necessarily succeed; it is one that is deserving of the Court's consideration.
  • The object of rule 5(2)(b) is the preservation of the subject matter of the appeal to ensure the just and effective determination of appeals.

Court orders

#
  1. 1.Stay of execution of the judgment of the High Court at Bungoma dated 28th October 2015 in HCCC No. 93 of 2011, being prayer 2 of the notice of motion dated 17th December 2015, granted
  2. 2.Costs of the application to abide the outcome of the appeal

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Equity Bank Limited v West Link Mbo Limited
    Civil Application No. Nai 78 of 2011
  • Ishmael Kagunyi Thande v HFCK
    Civil Application No. Nai 157 of 2006
  • Dennis Mogambi Mong’are vs. Attorney General & others
    [2012] eKLR
On appeal from
High Court of Kenya at Bungoma
HCC E&L No. 93 of 2011
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wensley Barasa v Immaculate Awino Abongo [2016] KECA 460 (KLR)", Case Analysis (2016). Civil Application No. 68 of 2015 (UR 42/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/460/eng@2016-06-02

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