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Court of AppealDismissedCivil Appeal No. 40 of 2016· [2017] KECA 732 (KLR)

Alex Pungu & 106 others v Munyua Kimani [2017] KECA 732 (KLR)

Court of Appeal of Kenya
17 February 2017
Martha Karambu KoomeM.K. KoomeWilliam OukoW. OukoKMK. M'inoti
1,774 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop the enforcement of a land eviction order because the applicants could not point to any genuine, arguable issue for appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Koome, Ouko and M'inoti, JJ.A) on an application under rule 5(2)(b) of the Court of Appeal Rules by 107 applicants seeking stay of execution of a judgment of the Environment and Land Court at Mombasa (Mukunya, J.) delivered on 6th November 2014, which ordered them to vacate Plot No. 183/12 Section I Mainland North or the 32 subdivided parcels within 45 days or face eviction. The respondent had purchased the land in 2005 and sued the applicants as trespassers who invaded it in 2006; the ELC found adverse possession unproven because the portions each occupied were never established. The applicants filed their notice of appeal on 12th November 2014 but the application for stay was not brought until 1st July 2016, prompting the Court to question whether such dilatoriness merited the equitable remedy. The Court first rejected the respondent's competence objections: the erroneous date on the notice was a typographical slip, the operative date being lodgement, per Nicholas Salat v IEBC; the respondent was precluded from raising timeliness because he never invoked rule 84 within 30 days, per the Wasike case; and rule 82 time had not run because certified proceedings were bespoken within 30 days, per Margaret Bashforth. On the merits, the Court found the grounds generalized - no specific omitted evidence or unprayed-for remedy was identified - and held the intended appeal was not arguable. Having failed the arguable limb, the nugatory limb was not considered. The application was dismissed with costs to the respondent.

Key legal issues

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01

Competence of the notice of appeal given the typographical error in its date

Holding

The notice was competent because it was lodged on 12th November 2014 within the 14-day period; the erroneous date of 26th November 2014 was a mere typographical error not warranting striking out.

Reasoning

The respondent relied on the date endorsed on the notice, but the Court held the operative date is the date of lodgement, which was stamped by the Deputy Registrar within 14 days of the judgment. Following Nicholas Salat v IEBC, the Court declined to strike out a notice of appeal on such a technicality.

p. 2
02

Whether the respondent was precluded from challenging the timeliness of the appeal

Holding

Yes; under rule 84 the respondent was obliged to apply to strike out the notice of appeal within 30 days of service and did not do so.

Reasoning

The Court applied National Industrial Credit Bank Ltd v Aquinas Francis Wasike, holding that a party who does not invoke rule 84 within the prescribed 30 days cannot later complain that the notice of appeal was filed out of time or that no appeal was filed within 60 days under rule 82.

p. 2
03

Compliance with rule 82 regarding filing of the appeal within 60 days

Holding

The applicants had applied for certified copies of proceedings within 30 days, so the 60-day period had not yet begun to run.

Reasoning

Following Margaret Bashforth v Worburn Estate Ltd, the Court held that where an intending appellant applies in writing for certified proceedings within 30 days and serves the respondent, time under rule 82(1) runs only from the Registrar's advice that the proceedings are ready. There was no complaint that the letter was not served.

p. 3
04

Arguability of the intended appeal and entitlement to stay under rule 5(2)(b)

Holding

The intended appeal was not arguable; the applicants failed to identify any specific evidence said to be omitted or any remedy granted that was not prayed for, so both limbs of the rule 5(2)(b) test failed.

Reasoning

The Court examined each of the three grounds advanced and found them generalized: no omitted or unconsidered evidence was identified, and the amended plaint showed the remedies granted had been prayed for. Following Jaribu Holdings and Kenya Ports Authority, failure on the arguable limb was fatal and the nugatory limb fell away. Dilatoriness of one and a half years also weighed against the equitable remedy.

p. 3

Legal principles established

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  • The crucial date for a notice of appeal is the date it was lodged in court, not the date endorsed on the document, and a mere typographical error in the date will not warrant striking out the notice.
  • A party who contends that a notice of appeal was filed out of time must, under rule 84 of the Court of Appeal Rules, apply to strike it out within 30 days of service, failing which he is precluded from raising the issue.
  • Where a party applies within 30 days for certified copies of proceedings in writing and serves the opposite party, the 60-day period under rule 82(1) runs from the date the Registrar advises the proceedings are ready for collection.
  • An applicant for stay of execution under rule 5(2)(b) must satisfy both limbs - an arguable appeal and nugatory - and satisfying only one will not suffice.
  • An arguable appeal need not be one that must succeed, but it must disclose at least one bona fide issue deserving of the Court's hearing.
  • Where an applicant fails to establish an arguable appeal, the Court need not consider the nugatory limb.

Court orders

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  1. 1.The application for stay of execution pending the hearing and determination of the intended appeal was dismissed
  2. 2.Costs of the application were awarded to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 75
  • Court of Appeal Rulesrule 82(1) and proviso
  • Court of Appeal Rulesrule 83
  • Court of Appeal Rulesrule 84
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (6)

  • Nicholas Salat v. IEBC & 7 Others
    CA (A) No. 228 of 2013
  • National Industrial Credit Bank Ltd v Aquinas Francis Wasike & Another
    CA No. Nai. 238 of 2005
  • Margaret Bashforth v. Worburn Estate Ltd
    CA No. 5 of 2015
  • Jaribu Holdings Ltd v. Kenya Commercial Bank Ltd
    CA. No. 314 of 2007
  • Francis Sirma Kios v. Kibore Sigilai
    CA. No. Nai. 50 of 2013
  • Kenya Ports Authority v. James Nderitu Gachagua t/a Jagar Consultants
    CA. No. Nai. 181 of 1998
On appeal from
Environment & Land Court at Mombasa
ELCC No. 287 of 2008
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alex Pungu & 106 others v Munyua Kimani [2017] KECA 732 (KLR)", Case Analysis (2017). Civil Appeal No. 40 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/732/eng@2017-02-17

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