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Court of AppealDismissedCivil Application No. 61 of 2016· [2017] KECA 305 (KLR)

Cosmas Kiti & Others v Charles K. Wanguhu & another [2017] KECA 305 (KLR)

Court of Appeal
21 September 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM.K. Koome
1,173 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt eviction of Kilifi squatters because their appeal raised no genuinely arguable issue.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Malindi (Visram, Karanja and Koome, JJ.A.) dismissing an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a judgment of the Environment & Land Court (Angote, J.) dated 6th March 2015, in which the applicants - found to be squatters on 23.75 acres at Kanamai, Kilifi County - were ordered to vacate. The applicants filed a Notice of Appeal but had not filed the record of appeal. The respondents opposed, pointing out that the applicants had never served a letter bespeaking the proceedings, but the court held the application was properly before it since a Notice of Appeal existed. Applying the settled twin principles for Rule 5(2)(b) applications - arguability and nugatory effect - the court stressed they are conjunctive, not disjunctive. On arguability, the applicants' affidavit merely asserted overwhelming chances of success without reasons. The trial court's finding that the respondents were the registered owners was uncontested, and the applicants' occupation since around 2002 fell eight years short of the prescriptive period for adverse possession. The application therefore failed the first limb, and the court declined to consider the nugatory aspect, noting that the applicants would have remedies, including damages for wrongful eviction, if evicted and later successful on appeal. The application was dismissed with costs to the respondents. The ruling binds superior and lower courts on the conjunctive application of the stay principles and the standard of arguability.

Key legal issues

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01

Whether the intended appeal was arguable so as to satisfy the first limb of the Rule 5(2)(b) test

Holding

The appeal was not arguable: the applicants' affidavit gave no reasons, the finding that the respondents were registered owners was uncontested, and the applicants' occupation fell short of the prescriptive period for adverse possession by eight years.

Reasoning

The court noted the trial court made a solid, unchallenged finding that the respondents were registered owners and that the applicants invaded the land around 2002. The suit filed in 2006 left their occupation eight years short of the twelve-year prescriptive period for adverse possession. Mere assertion of overwhelming chances of success, unsupported by reasons, cannot satisfy the arguability limb.

p. 2
02

Whether the nugatory limb required consideration once arguability failed

Holding

No - because the two principles are conjunctive, failure on the first limb made it unnecessary to consider the nugatory aspect.

Reasoning

The court reiterated that the twin principles are conjunctive and not disjunctive: an applicant must first establish arguability and only then the nugatory dimension. Having failed on arguability, the court declined to enter the nugatory analysis, noting only that if evicted and later successful, the applicants would have remedies including damages for wrongful eviction.

p. 2

Legal principles established

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  • The two principles for stay of execution under Rule 5(2)(b) - arguability and nugatory effect - are conjunctive, not disjunctive; an applicant must establish both, starting with arguability.
  • Arguability does not require that an appeal must succeed; it suffices that the appeal raises a bona fide issue deserving consideration and determination by the Court.
  • An applicant on Rule 5(2)(b) need only establish a single arguable point.

Court orders

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  1. 1.The application dated 14th September 2016 for stay of execution of the judgment and decree dated 6th March 2015 is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 82(2)

Cases cited (4)

  • Reliance Bank vs Norlake Investments Ltd
    [2002] I CA 218 (CAK)
  • Githunguri vs Jimba Credit Corporation Ltd
    [1988] KLR 838
  • Kenya Tea Growers Association & Another vs Kenya Planters Agricultural Workers Union
    Civil Application No. Nai 72 of 2001
  • Ahmed Musa Ismael vs Kumba ole Ntamorua & 4 Others
    [200] KLR 31
On appeal from
Environment & Land Court at Malindi
E & L.C.C. No. 76 of 2006
Jurisdiction invoked
Rules of this Court, Rules 4 and 5(2)(b) 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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Cite this brief

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Cite this brief

Caselaw, "Cosmas Kiti & Others v Charles K. Wanguhu & another [2017] KECA 305 (KLR)", Case Analysis (2017). Civil Application No. 61 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/305/eng@2017-09-21

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