Helida Asiko v Maracelin A Odawa & 2 others [2017] KECA 348 (KLR)
The bottom line
#Kenya's Court of Appeal halted eviction and High Court proceedings, ruling that even one arguable appeal issue can protect someone facing eviction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable (not frivolous)
- 2.Whether the appeal, if successful, would be rendered nugatory unless an injunction and stay of proceedings are granted
Key legal issues
#Whether the intended appeal was arguable
The court found the appeal arguable, since the complaint that the learned judge failed to evaluate and analyse the evidence on the alleged fraudulent change of parcel numbers was not frivolous.
The applicant contended that the judge failed to evaluate the evidence on the alleged fraudulent change of the parcel number from Kisumu/Muhoroni/1630 to Kisumu/Muhoroni/1040 and misapprehended the evidence in concluding that the suit property belonged to the government. The court held such a complaint could not be dismissed as frivolous, and citing Chris Bichage v Richard Nyagaka Tongi, that one arguable issue suffices.
Whether the appeal would be rendered nugatory if stay and injunction were not granted
Since the applicant was in occupation and faced eviction, the appeal would be rendered nugatory if she were evicted before its determination; the respondent would suffer no undue prejudice as the property would still exist and she could evict the applicant if she succeeded.
The court observed the applicant was in occupation of the suit property and faced a threatening letter demanding she vacate and possible eviction. Eviction before the appeal was heard would render a successful appeal nugatory. Conversely, maintaining the status quo prejudiced the respondent little, since the property would remain in existence and the respondent could evict the applicant if the appeal failed.
Legal principles established
#- To succeed on a rule 5(2)(b) application, an applicant must demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if the orders sought are not granted.
- A single arguable issue suffices to satisfy the first principle in a rule 5(2)(b) application.
Court orders
#- 1.An injunction and a stay of proceedings in the High Court in terms of the Notice of Motion lodged on 19th June 2017
- 2.The appeal to be filed within 60 days from the date of the ruling
- 3.Costs to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Kisumu (Environment and Land Court)
- Environment and Land Court No. 80 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - injunction and stay pending appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we grant, an injunction and a stay of proceedings in the High Court in terms of the Notice of Motion lodged on 19th June 2017. We further order that the appeal be filed within 60 days from the date hereof and that costs be in the intended appeal.
Two main principles guide the court in its exercise of that discretion, namely for the applicant to succeed, he must not only show he has an arguable appeal or that his intended appeal is not frivolous but also that unless granted an injunction, stay of decree or further proceedings, as the case may be, his appeal or intended appeal, if successful will be rendered nugatory.
We think it prudent for the current prevailing situation on the suit property to be maintained pending the hearing and determination of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Helida Asiko v Maracelin A Odawa & 2 others [2017] KECA 348 (KLR)", Case Analysis (2017). Civil Application No. NAI. 55 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/348/eng@2017-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.