The County Government of Uasin Gishu & another v Ravindra Ratilal Tailor & 3 others

Court of Appeal

16 February 2017

DMD. K. Musinga SKS. Gatembu Kairu AMA. K. Murgor

1,598 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~6 min to read original · ~4 min brief

The bottom line

The Court of Appeal refused to pause a land possession order against Uasin Gishu County because the county failed to show the appeal would be pointless without a pause.

What this practically means

Executive summary

This is a ruling of the Court of Appeal at Eldoret (Musinga, Gatembu Kairu & Murgor, JJ.A) on a notice of motion dated 21st September 2016 brought under Rule 5(2)(b) of the Court's Rules by the County Government of Uasin Gishu and its C.E.C for Land, Housing & Physical Planning. The applicants sought stay of execution of an order made by Ombwayo, J. on 18th August 2016 in Eldoret E&LC No. 220 of 2016, which reinstated the respondents (trustees of the Uasin Gishu Arts Society) in possession of Title Number Eldoret Municipality Block 13/22 pending an inter partes hearing, and stay of the proceedings below pending an intended appeal. The dispute concerned possession of the property after expiry of a 49-year lease; the respondents claimed a legitimate pre-emptive right to renewal pending determination by the National Land Commission, while the applicants asserted that their own lease application had been approved. The applicants argued the judge lacked jurisdiction, that no mandatory injunction had been prayed for, and that another judge (Munyao Sila, J.) had declined to order vacation of the premises. The respondents countered that both parties had been heard and that the court had power under Section 13 of the Environment and Land Court Act. Applying the settled twin principles of arguability and nugatory-ness, the court found the intended appeal arguable but not frivolous, yet held the applicants had not demonstrated the appeal would be rendered nugatory if stay was declined. It declined both stay of execution and stay of proceedings, holding the interests of justice required expeditious hearing of the pending application and suit, and dismissed the motion with costs to the respondents.

Key legal issues

Whether the twin principles for granting stay under Rule 5(2)(b) were satisfied

Holding

The application failed because although the appeal was not frivolous, the nugatory limb was not established.

Reasoning

The court applied the settled two-pronged test from Ishmael Kagunyi Thande v HFCK: arguability and nugatory-ness. It found the intended appeal arguable but not frivolous, yet the applicants failed to show how compliance with the reinstatement order would render the appeal nugatory. Both limbs must be satisfied; failure on one disposes of the application.

p. 4

Whether stay of proceedings should issue where an inter partes application is pending before the lower court

Holding

Stay of proceedings was refused; the pending application and suit should be heard and determined expeditiously.

Reasoning

The court noted the respondents' interlocutory application of 9th August 2016 was still pending hearing inter partes before the ELC. It held itself guarded in expressing views, and concluded the interests of justice favoured expeditious hearing of the suit and pending application rather than a stay of proceedings.

p. 4

Legal principles established

An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that the appeal will be rendered nugatory if stay or injunction is not granted; both limbs must be satisfied.
An arguable appeal is not one that must necessarily succeed but simply one deserving of the Court's consideration.

Court orders

1.The motion dated 21st September 2016 is dismissed
2.Costs of the application awarded to the respondents

Authorities

Legislation

Rules of the Court (Court of Appeal Rules)Rule 5(2)(b)
Environment and Land Court ActSection 13

Cases cited (4)

Alex Wainaina t/a John Commercial Agencies vs. Janson Mwangi Wanjihia
[2015] eKLR
That a mandatory injunction cannot be granted at interlocutory stage and where no prayer for one exists
Aguthi Enterprises Limited v Hussein Ibrahim Nuni
[2015] eKLR
That an applicant must establish an arguable appeal and that the appeal will be rendered nugatory
Ishmael Kagunyi Thande v HFCK
Civil Application No Nai 157 of 2006
The settled twin principles of arguability and nugatory-ness under Rule 5(2)(b)
Dennis Mogambi Mong’are vs. Attorney General & others
[2012] eKLR
That an arguable appeal need not necessarily succeed but must deserve the Court's consideration

On appeal from: Environment and Land Court at Eldoret; Eldoret E&LC Case Number 220 of 2016
Jurisdiction invoked: Rule 5(2)(b) of the Rules of the Court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "The County Government of Uasin Gishu & another v Ravindra Ratilal Tailor & 3 others", Case Analysis (2017). Civil Application No. 73 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/785/eng@2017-02-16

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