Wensley Barasa v Immaculate Awino Abongo [2016] KECA 460 (KLR)
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
#Key legal issues
#Whether the intended appeal is arguable
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.
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.
Whether the appeal would be rendered nugatory if stay is denied
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.
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.
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.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.Costs of the application to abide the outcome of the appeal
- 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.