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Court of AppealDismissedCivil Application No. 24 of 2016· [2017] KECA 670 (KLR)

James Kiterie Alfayo v Margaret C. Wambete [2017] KECA 670 (KLR)

Court of Appeal of Kenya
24 March 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,207 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a stay of execution because the applicant had already been evicted—there was nothing left for a stay to preserve.

What this practically means

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Executive summary

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This was a single-judge-application panel ruling of the Court of Appeal at Eldoret under rule 5(2)(b) of the Court of Appeal Rules, in which James Kiterie Alfayo sought a stay of execution of the judgment and decree of the Environment and Land Court at Kitale (Obaga, J.) delivered on 15th September 2015 in Environment and Land Case No. 78 of 2003, together with an injunction maintaining the status quo on Plot Number 80, Kitalale Settlement Scheme Phase 1 pending an intended appeal. The applicant, who had claimed ownership of the plot and lost at trial with an order of eviction, argued that he had occupied the land for some 16 years and that eviction would render the appeal nugatory. The respondent countered that execution had already been carried out, the applicant having been evicted on 26th August 2016, his structures demolished, and possession taken. The court restated the twin principles for a stay under rule 5(2)(b): the intended appeal must be arguable, and the appeal must be rendered nugatory if stay is refused. It accepted that the appeal may be arguable, holding however that arguability does not assure success. On the nugatory limb, the court found execution had already taken place - an eviction order had issued on 17th August 2016 addressed to the OCS Kitale - and the applicant was no longer on the land, so there was nothing to stop. The application was accordingly dismissed with costs to the respondent. The decision below was not disturbed; the ruling binds subordinate courts on the settled rule 5(2)(b) principles it restates.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The court found the appeal may be arguable on the grounds concerning the interpretation of the Land Registrar's report and the identity of Plot Number 38 and Plot Number 80, but arguability alone does not guarantee success.

Reasoning

The court examined the memorandum of appeal and identified grounds challenging the learned judge's interpretation of the Land Registrar's report and findings on the plot identity. It accepted these grounds were capable of argument, but stressed the settled position that an arguable appeal is not one necessarily assured of success, so arguability alone does not carry the application.

p. 2
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The nugatory limb failed because execution had already taken place: an eviction order was issued on 17th August 2016 and the applicant was evicted on 26th August 2016, so there was nothing left to stay.

Reasoning

The judgment and eviction order predated the application. The eviction order directed the OCS Kitale to evict the applicant from Plot No. 38 Kitalale, and the respondent deponed that eviction occurred on 26th August 2016 and she took possession. Since the applicant was no longer on the land, the court had nothing to preserve by a stay, and the application was dismissed with costs.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and not frivolous, and that unless a stay is granted the appeal will be rendered nugatory; an arguable appeal need not be assured of success.
  • An arguable appeal does not necessarily mean an appeal that is assured of success.
  • Where execution has already been carried out and the applicant is no longer in possession, a stay of execution cannot issue as there is nothing left to stay.

Court orders

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  1. 1.The application for stay of execution and injunction pending appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (4)

  • Githunguri vs. Jimba Credit Corporation Ltd. (No. 2)
    (1988) KLR 838
  • J.K. Industries Ltd. vs. Kenya Commercial Bank Ltd.
    (1982-88) 1 KAR 1688
  • Reliance Bank Limited (In Liquidation) vs. Norlake Investments Limited
    Civil Application No. Nai. 98 of 2002 (unreported)
  • Al-Mahra Limited vs. Premier Foods Industries Limited
    Civil Application No. Nai. 163 of 2006
On appeal from
Environment and Land Court at Kitale
Environment and Land Case No. 78 of 2003
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "James Kiterie Alfayo v Margaret C. Wambete [2017] KECA 670 (KLR)", Case Analysis (2017). Civil Application No. 24 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/670/eng@2017-03-24

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